An attorney in Texas recently accepted a court appointment to represent a defendant in a criminal appeal. One of the issues on appeal was, almost ironically, whether the district court had denied the defendant her right to counsel as guaranteed under Texas law and United States Constitutions. Many thousands of decisions have interpreted these constitutional provisions so many that it would be difficult to fail to locate cases on point by conducting basic legal research on the issue. However, in a brief filed with the appellate court, counsel cited merely one case, one statute, and one constitutional provision, clearly insufficient authority to support an argument on issues raised in the case. Counsel, in sum, failed the client. This was so notwithstanding constitutional guarantees that the defendant receive effective assistance of counsel in appellate cases, rules of appellate procedure requiring citations to legal authorities to support an argument, local court rules regarding citations to legal authorities, and rules of professional conduct that require attorneys to represent clients diligently and promptly.
Every advocate has essentially the same professional responsibility whether he or she accepted a retainer from a paying client or an appointment from a court. The appellate lawyer must master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal. In preparing and evaluating the case, and in advising the client as to the prospects for success, counsel must consistently serve the client's interest to the best of his or her ability.
Walder v. State, 85 S.W.3d 824 (Tex. App.¾Waco 2002, no pet. h) (per curiam).
This was not a remarkable case. The court itself noted, "With disturbing frequency, this Court receives briefs which are inadequate." Though this statement relates in part to the form of an appellate brief, many of these inadequacies could have been avoided had counsel performed research on the proper contents of the brief set forth in the rules of court governing appellate procedure. Among the requisites of an appellant's brief in a civil or criminal appeal, counsel must include "appropriate citations to authorities" when (1) explaining "how the issue or point presented has been preserved for appellate review or why no preservation is required"; (2) stating the appropriate standard of appellate review; (3) identifying the "legal principles which govern the issue or point presented;" (4) explaining "whether the issue or point presents a constitutional or non-constitutional error;" and (5) explaining "how this error harmed his client under the appropriate analysis" in the Texas Rules of Appellate Procedure.
According to the Walder court,
Appropriate citations to authorities [in a criminal appeal] should include pertinent cases, statutes, rules and constitutional provisions. When citing cases, counsel should identify and cite, at a minimum, pertinent decisions of the Supreme Court of the United States, the [Texas] Court of Criminal Appeals, of this Court when available, and if no cases from this Court can be located on the issue presented, of other Texas intermediate courts of appeals…. "In citing cases, specific page citations should be given to the pages where the relevant holdings or quotations may be found." Counsel should research the subsequent history of any case cited to be sure that it has not been reversed or modified. When counsel cites a decision of one of the fourteen intermediate courts of appeals, counsel should provide a subsequent history on any petition for discretionary review or indicate that no petition was filed.
Id. at 828.
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