Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, March 29, 2021

“This is Not Proper Appellate Advocacy”: Third Circuit Slaps Sanctions on Attorney Who Copied and Pasted Trial Court Briefs

This is a guest post by Philip Hall. Philip is a current 3L at Pennsylvania State University’s Dickinson School of Law.  After law school, Philip will be a civil litigator at the law firm of Knox McLaughlin Gornall & Sennett, P.C. in Erie, Pennsylvania.

A week and a half ago, the Third Circuit issued an unmistakable warning: meritless “copy-and-paste appeal[s]” have consequences. 

The case was Conboy v. United States Small Business Administration, and appellants’ counsel was a repeat violator of federal procedural and ethical rules.  On appeal of the district court’s summary judgment, appellants’ counsel filed briefs containing numerous procedural misstatements.  Counsel wrote in the present tense—stating, for example, that “[t]he district court has subject-matter jurisdiction” and that “summary judgment should be denied”—as if he were still arguing to the district court.  And nowhere in counsel’s fifteen pages of argument did he mention how the district court erred. 

The Third Circuit was not fooled.  “Counsel for [appellants] simply took the summary judgment section of his District Court brief and copied and pasted it into his appellate brief. . . .  This is not proper appellate advocacy,” the court said. 

Appellees filed a motion for frivolous-appeal damages under Federal Rule of Appellate Procedure 38.  Unrepentant, appellants’ counsel copied and pasted again, this time from his previous opposition to sanctions in the district court under Civil Rules 11 and 37. 

The Third Circuit sanctioned appellants’ counsel, ordering him to pay appellees’ Rule 38 damages personally.  “[D]espite many cues” from the district court “that [appellants’] cause was wholly meritless,” appellants’ counsel “filed a copy-and-paste appeal without bothering to explain what the District Court did wrong.  It is hard to imagine a clearer case for Rule 38 damages,” the court said. 

This case offers several important reminders.  First, attorneys have an ethical and procedural obligation to research the law and to determine if a claim on appeal is frivolous.  Second, attorneys owe their clients an ethical duty of competent representation, which includes thorough preparation and the “use of methods and procedures meeting the standards of competent practitioners.”  And third, attorneys shouldn’t dream that they can slip one past an appellate court.

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