Wednesday, June 19, 2013
Ind. Courts - “Disingenuous” Appellate Lawyering in Indiana: A Worsening Trend or Unfair Accusation?
Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law
Since January of 2010, on thirty-three separate occasions the Indiana Court of Appeals has issued opinions labeling an appellate lawyer’s argument “disingenuous.”* Although this is less than one-half percent of the nearly 8,000 opinions issued over almost three and half years, thirty-three instances of disingenuousness by lawyers is nevertheless troubling — and appears to be worsening. Six occurred in the first five and a half months of 2013.
Calling a lawyer “disingenuous” is a serious charge. The primary definition in Webster’s is “lacking in candor,” which sounds a lot like a violation of Indiana Rule of Professional Conduct 3.3. That rule is entitled “Candor Toward the Tribunal” and prohibits lawyers from knowingly making “a false statement of fact or law,” or offering “evidence that the lawyer knows to be false.” The comments make clear that lawyers “must not allow the tribunal to be misled by false statements of law or fact,” although lawyers are “not required to present an impartial exposition of the law.”
In the view of some, disingenuous is a fancy, five-syllabus way of calling someone a liar.
A Few Examples
The complete list of the thirty-three instances of disingenuousness with links to the opinions is available here. Assessing the extent or degree of disingenuousness is sometimes challenging without reading the record or researching the applicable law. But at least a few of the alleged incidents of disingenuousness strike me not as arguments lacking in candor but merely ones lacking persuasive force.
1. Hull v. State: “Hull is disingenuous in claiming that the trial court abused its discretion in failing to give mitigating weight to his lack of an adult criminal record. Hull was only seventeen when he was arrested and prior to the instant offenses had never been waived into adult court.”
My thoughts: Juveniles as young as ten years old charged with murder can be waived to adult court as can other juveniles as young as fourteen charged with other offenses. Should a seventeen-year-old without an adult criminal record be proud of the accomplishment? Probably not, but I don’t think the argument lacks candor or is somehow dishonest.
2. Pond v. State: “Pond contends that his guilty plea saved the State both time and expense and spared Jacob’s family from the pain and anguish of going through a trial where gruesome autopsy photos would have been displayed. While the trial court afforded some mitigating weight to Pond’s guilty plea, we find his argument disingenuous in light of the substantial benefit Pond received for his guilty plea.”
My thoughts: The Indiana Supreme Court has repeatedly held that “[a] guilty plea demonstrates a defendant's acceptance of responsibility for the crime and extends a benefit to the State and to the victim or the victim's family by avoiding a full-blown trial.” Granted, sometimes the defendant may have charges dismissed or reduced for pleading guilty, but the State has still saved time and expense by avoiding a trial and victims are spared “pain and anguish” of a trial.
3. Williams v. State: “Williams argues that the trial court abused its discretion when it imposed the balance of his previously suspended sentence because he committed only ‘administrative rule violations.’ Williams’s attempt to minimize the severity of his conduct by categorizing his violations as ‘administrative’ is disingenuous, at the very least.”
My thoughts: Perhaps “administrative” is not the ideal word choice, but many defendants violate the conditions of their probation by conduct that is unquestionably serious and in no way administrative, such as commission of a new felony offense. If counsel is appointed to appeal a clear violation of less serious conditions, about the only argument available is minimizing the severity of the violations in arguing for a sentence less than the maximum. Here’s an example of a case where I fortunately was not labeled disingenuous for a similar argument.
Challenges for Appointed Counsel
The vast majority of criminal defense and defense of parents in termination of parental rights’ cases involve appointed counsel. Those cases comprise almost half of the thirty-three alleged incidents of disingenuousness. The Indiana Supreme Court held in Mosley v. State, 908 N.E.2d. 599 (Ind. 2009), that appointed counsel cannot file an Anders brief and withdraw in a case without meritorious legal claims but must instead file an advocative brief on behalf of the client. Moreover, Rule of Professional Conduct 3.1 makes clear that lawyers representing criminal defendants “may nevertheless so defend the proceeding as to require that every element of the case be established.” The Comments explain that lawyers’ obligations under the rule “are subordinate to federal or state constitutional law that entitles a defendant in a criminal matter to the assistance of counsel in presenting a claim or contention that otherwise would be prohibited by this Rule.”
Although appointed counsel will often make arguments that lack legal merit, a lawyer should not be labeled “disingenuous” for bringing the least bad claim available.
Lawyers in General
If appellate lawyers are truly making dishonest arguments or other serious mistakes in an appeal, I’m a strong advocate for appellate judges pointing out the error in a clear and respectful way. If nothing is said, the lawyer may well keep making the same mistake. For example, it’s hard to believe that in 2013, more than ten years after Appellate Rule 7(B) was amended to change the “manifestly unreasonable” standard for revising a sentence on appeal to the considerably less deferential “inappropriate” standard, lawyers are still citing the old and unfavorable standard. They should be told when citing a wrong, decade-old standard.
Wide Variations Among Judges
Unlike the citation of a legal standard that everyone would agree is plainly wrong, finding arguments disingenuousness sometimes does not share the same universality. Indeed, the use of the term disingenuous varied widely among the sixteen judges (Judge Pyle replaced Judge Darden in 2012) on the Court of Appeals. Six of the judges never used the word. The remaining ten judges used the word at least once, although most did so rarely while three of the judges accounted for nearly two-thirds (21 of the 33) of the usage.
In contrast, Indiana Supreme Court opinions labeled lawyers disingenuous just twice. Both were in disciplinary opinions and interestingly involved pro se Respondents:
In re Powell (“We agree with the hearing officer's finding of the following facts in aggravation: . . . (3) he made disingenuous, contradictory, unsupported, and evasive assertions during the proceedings ...")
In re Williams (“Respondent's attempt (after his initial defense failed in the civil case and initial response to the grievance) to allege that the Commission is attacking his personal beliefs and the contents of his books is disingenuous to the extreme. They play no role the Court's conclusion that he should be disciplined for the professional misconduct described above.”)
Disingenuous may not be the worst thing some lawyers have been called in a publicly accessible court opinion. A subsequent post will consider other words and phrases, and I welcome your input. But disingenuous, with the suggestion of dishonesty, seems near the top of the list.
Finally, judges lead by example, and their use of the word may well embolden some attorneys to do the same. A quick search of the appellate briefs available on Westlaw suggests lawyers are already more likely than judges to level accusations of disingenuousness, a trend that hopefully does not continue.
*Searches of Indiana cases on both Westlaw and Lexis for the term "disingenuous!" yielded 51 hits. I excluded the Indiana Supreme Court opinions discussed in this entry as well as several other cases where the word was simply quoted from another source or otherwise not directed to the conduct of counsel. Three cases involving pro se litigants were also excluded.
Posted by Marcia Oddi on June 19, 2013 01:35 PM
Posted to Schumm - Commentary