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Briefs – Content – “Overly Tendentious” Tone, Lack of Civility

U.S. Bank National v. City of Milwaukee, 2003 WI App 220

Issue/Holding: fn. 4:

The brief submitted to us by the City of Milwaukee is overly tendentious and lacks the civility that lawyers owe to both their adversaries and to the courts. The following has no place in a brief before any court in this state: accusing an opposing party of seeking “political anarchy” … of “creating a `sideshow,'” … of advancing “crazy arguments” that “are ludicrous,” … characterizing an opponent’s arguments as “hogwash” … characterizing an opponent’s argument as “ridiculous,” … and characterizing an opponent’s argument as “crazy[.]”In our view, these comments violate SCR 62.02(1)(a), because they do not reflect a “cordial and respectful demeanor”; SCR 62.02(1)(b), because they are not “civil”; SCR 62.02(1)(c), because they are “disparaging, demeaning [and] sarcastic”; and SCR 62.02(1)(d), because they are “uncivil, abrasive, abusive, hostile, [and] obstructive.” We have previously warned appellate lawyers for the City, although not current counsel, that hyperbole is “unworthy of government lawyers.” Milwaukee Police Ass’n v. City of Milwaukee, 2002 WI App 43, ¶13 n.3, 250 Wis. 2d 676, 688 n.3, 641 N.W.2d 709, 715 n.3. It is unworthy of all lawyers. See Aspen Servs., Inc. v. IT Corp., 220 Wis. 2d 491, 509, 583 N.W.2d 849, 856 (Ct. App. 1998) (“Civility is one aspect of professionalism that all attorneys should strive for.”)

Is it necessary to add that circumspection is expected when criticizing judicial decisions? See, e.g., Peters v. Pine Meadow Ranch, 2007 UT 2, ¶¶7, 8 (“But to argue that a court has committed an error is one thing; to argue that a court has intentionally committed that error due to an improper motive is quite another. … To make bald and unfounded accusations of judicial impropriety in briefs filed with this court … has overstepped the bounds of appropriate appellate advocacy.”); In the Matter of Wilkins, 777 N.E.2d 714 (Ind. 2002) (suspending counsel, where “not even colorably appropriate” comments in brief “suggested that the judges on the Court of Appeals may have been motivated in their decision making by something other than the proper administration of justice, and, in fact, suggested unethical motivations. We find that his comments in footnote 2 violated Prof.Cond.R. 8.2(a) because they were made with reckless disregard as to the truth or falsity concerning the integrity of a three-judge panel of the Court of Appeals. … A statement used in a document filed before the appellate courts that contains an assertion the lawyer knows to be false or made with reckless disregard as to the truth or falsity concerning the qualifications or integrity of a judge is neither a “format” contemplated by our appellate rules nor allowed by our Rules of Professional Conduct.” — the court subsequently reduced the penalty to a reprimand, on the basis the the offensive conduct had been mitigated by sufficient remorse, 782 N.E.2d 985).

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