Wednesday, December 17, 2008, 4:17 PM

COA Sanctions Appellant's Counsel For Filing Record On Appeal Different From The Proposed Record That Counsel Served On Appellees

Yesterday the Court of Appeals (COA) sanctioned appellant's counsel for filing a record on appeal that differed from the proposed record that was served on the appellee. The COA ruled that this conduct violated multiple Rules of Professional Conduct. The opinions were announced in two related decisions in the same case: Hackos v. Smith. The main decision is here and the other one is here.

Plaintiff lost on summary judgment. She filed an appeal. She also moved the trial court for reconsideration, and when that was denied, she filed a separate appeal. So she had two appeals. She served proposed records for each appeal. They didn't have assignments of error and other items (e.g., statement of organization of the trial court, statement of jurisdiction) that appeared in the final record that appellant filed with the COA.

The COA sanctioned counsel by holding that counsel's conduct (not filing the same record on appeal with the COA that counsel served on the appellees) constituted gross appellate rule violations and violated the Rules of Professional Conduct:

1) Rule 3.3(a). It prohibits knowingly making a "false statement of material fact or law" to a tribunal or failing to correct such a statement previously made to the tribunal.
2) Rule 3.4(a). It says a lawyer can't "unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value."
3) Rule 8.4(c). It prohibits "conduct involving dishonesty, fraud, deceit or misrepresentation."

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