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Briefs – Content – Tone: Ad Hominem

Bettendorf v. St. Croix County, 2008 WI App 97

Issue/Holding: An appellate “brief contain(ing) a collection of attacks against [opposing counsel] that are nothing more than unfounded, mean-spirited slurs” subjects its author to ethical sanction:

¶17      “A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.” (Emphasis added.) Preamble, SCR ch. 20 (2005-06). “The advocate’s function is to present evidence and argument so that the cause may be decided according to law…. An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.” [3] Comment, SCR 20:3.5 (2005-06). Given corporation counsel’s unwarranted belligerence, it is the determination of this panel that a copy of this opinion shall be furnished to the Office of Lawyer Regulation for review and further investigation, as that office may deem appropriate.

 [3] We thus appreciate Bettendorf’s attorney’s professionalism and restraint, demonstrated by his refusal to turn his reply brief into a similar set of attacks.

An object lesson in the dangers of brief-writing as therapy—ventilating, in a word. The court quotes some (or is it all? the court doesn’t say) of the offending language: ¶¶15-16. Sophomoric? No doubt. Personal? Well, use of the personal pronoun “I” is a bit of a giveaway. Clearly, the rhetoric is both gratuitous and self-defeating. (Remember, respondent made the offensive argument; the appeal, without getting into the details, seems quite frivolous and perhaps the appellant would have been sanctioned had it not been for the distraction caused by respondent’s tone.) Let’s agree, then, that respondent’s approach is one an effective advocate should always avoid, at all costs. But just why was it unethical rather than merely ineffectual? For exhibiting what the court oddly characterizes as “unwarranted belligerence”? The characterization suggests, by the way, that warranted “belligerence” is within bounds. And if that is so, then why wasn’t counsel’s belligerence warranted by the mere fact of a patently frivolous appeal?

There is, to be sure, no doubt that sufficiently aggravated and personal attacks on opposing counsel run afoul of ethical rules, e.g., U.S. Bank National v. City of Milwaukee, 2003 WI App 220, fn. 4; see also, Matter of Abbott, 925 A.2d 482 (Del. 2007). But where the line is drawn remains to be seen, nor does the court quite get around to saying. Perhaps a boundary can’t be set. At a minimum, then, it’s best to avoid ascribing motive to your opponent, as counsel apparently did here (accusing appellant of pursuing “excessive” “self-interest”).

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