Last year, I posted a widely read article about ethics and professionalism in the Sixth Circuit that explored the myriad ethical duties belonging to appellate lawyers, including the duty of candor, the duty to disclose adverse authority, and the duty of competence. But the first ethical duty that I highlighted was one that arises before a lawyer even decides to appeal a case to the Sixth Circuit: The duty to avoid frivolous and unwarranted appeals. As I explained, Rule 3.1 of the ABA Model Rules of Professional Conduct prohibits unwarranted appeals while Rule 38 of the Federal Rules of Appellate Procedure (“F.R.A.P.” makes clear that frivolous appeals are sanctionable. Rule 38 states that “[i]f a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.” Also, under 28 U.S.C. § 1912, “[w]here a judgment is affirmed by the Supreme Court or a court of appeals, the court in its discretion may adjudge to the prevailing party just damages for his delay, and single or double costs.” Additionally, the Sixth Circuit has discretion pursuant to 28 U.S.C. § 1927 “to assess excess costs, expenses, and attorney fees directly against an attorney who so multiples the proceedings in any cases unreasonably and vexatiously.”
Unfortunately, since the time my article was published, there have been several Sixth Circuit cases involving sanctions for frivolous and unwarranted appeals. Just one month ago in Bridgeport Music, Inc. v. Southfield Music, Inc., 714 F.3d 932 (6th Cir. 2013), the Sixth Circuit granted a motion for damages and costs under F.R.A.P. 38 and 28 U.S.C. § 1912 because the appeal filed by defendant and her appellate counsel was deemed to be frivolous and prosecuted for delay or harassment. The Sixth Circuit in Bridgeport Music concluded that the conduct of defendant and her appellate counsel was “objectively and patently meritless and a waste of judicial resources” because (1) the appeal was untimely given that plaintiff unduly delayed for years before filing a motion to vacate judgment in the district court, and (2) plaintiff’s claim was barred by a clearly worded release that plaintiff had entered into in another action. The Sixth Circuit’s strong language makes clear that it will not tolerate frivolous appeals and, just as importantly, will not hesitate to order sanctions.
Another recent case involving sanctions for a frivolous appeal is Seifert v. Graphic Packaging International, Inc., 486 Fed. Appx. 594 (6th Cir. 2012). Remarkably, the plaintiff’s appellate brief in this case did not contain a single record citation, in contravention of F.R.A.P. 28(a)(9)(A), which requires an appellant’s brief to include an argument containing “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.” The fact that plaintiff’s attorney filed a brief with no record citations indicated to the Sixth Circuit that plaintiff and her attorney “had no reasonable expectation” of vacating the district court’s summary judgment in favor of the defendant. The court determined, however, that the equities weighed in favor of sanctioning only plaintiff’s appellate attorney, “and not his client, who is untrained in the law.”
As Seifert shows, attorneys take a major risk when they file Sixth Circuit briefs without any record citations. Failing to file a reply brief also could be evidence of a frivolous appeal, as highlighted by the recent decision in Scherer v. JP Morgan Chase & Company, 2012 U.S. App. LEXIS 25516 (6th Cir. Dec. 11, 2012), where the Sixth Circuit ordered plaintiff’s counsel to show cause as to why he should not be sanctioned for filing an appeal. The district court in Scherer had dismissed the plaintiff’s claims on estoppel grounds, and then considered whether to impose sanctions on plaintiff’s counsel for filing a frivolous action. Although the district court ultimately elected not to impose sanctions, it noted that its decision was a “very close call,” and it admonished plaintiff’s counsel for not being more familiar with preclusion law. On appeal, the Sixth Circuit stated that the district court’s admonishment “should have given counsel a clear warning that the issues raised below would likely lack any merit on appeal.” Additionally, the Sixth Circuit pointed out that “[c]ounsel’s failure to file a reply brief is further evidence that he had reason to know the issue on appeal was a non-starter.” The Sixth Circuit in Seifert ultimately concluded that “[a]fter the district court’s rebuke, counsel should have seen the writing on the wall.”
Indeed, the writing clearly is on the wall. An appellate attorney who pursues a frivolous or unwarranted appeal is acting unethically and could be sanctioned. And the Sixth Circuit will not hesitate to order sanctions. As the Sixth Circuit noted in Scherer, “Rule 38 should doubtless be more often enforced than ignored in the face of a frivolous appeal.” It’s clear that ethics and professionalism matter in the Sixth Circuit, as these recent cases highlight.