Writing Right to Promote Legal Ethical Obligations ofCompetency and Diligence
By Janis L. Kirkland
Director, Legal Analysis, Research, and Writing Program
Regent University School of Law
The Regent Law Legal Learning Festival, presented with the 2021 Law Alumni weekend, isintended for alumni across the country. However, since a number of alumni practice in North
Caroling or Virginia, we anticipate seeking continuing legal education (CLE) credit in these twojurisdictions. Thus, these materials present relevant material based on the ABA Model Rules ofProfessional Conduct (ABA Model Rules), the Virginia State Bar Rules of Professional Conduct(Virginia Rules), and the North Carolina State Bar Rules of Professional Conduct (North
Carolina Rules).
Lawyers have a “special responsibility for the quality of justice.” ABA Model Rules, Preamble;
North Carolina Rules, Preamble; Virginia Rules, Preamble. As lawyers, we need to maintainawareness that the quality of our written work products is an important part of working to
improve the quality of our legal process and access to justice. Michael G. Walsh, The
Grammatical Lawyer: The Ethics of Legal Writing (Part I), 64 Prac. Law., June 2018, at 5, 6.
Although a key focus of legal writing often is limited to clarity and structure, concern for therules of legal professionalism also should be an integral part of the writing process. Margaret R.
Milsky, Ethics and Legal Writing, 85 Ill. B.J. 33, 33 (1997). An attorney’s failure to be attentive
to professional responsibilities as well as basic writing fundamentals can harm the client andproduce negative consequences for the attorney, such as disbarment, suspension, a reprimand, orfine. Carol Bast & Susan W. Harrell, Ethical Obligations: Performing Adequate Legal Researchand Legal Writing, 29 NOVA L. Rev. 49, 49 (2004) (hereinafter “Ethical Obligations”).
This CLE focuses largely on issues that arise in an attorney’s written materials that relate to the
ethical obligations of competency and diligence, although it also touches on the duty to disclose
adverse authority, as this topic often overlaps the need to provide competent research andanalysis.

RULES OF PROFESSIONAL CONDUCTClient-Lawyer Relationship
COMPETENCEABA Model Rule 1.1 – Competence
A lawyer shall provide competent representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness and preparation reasonably necessary forthe representation.

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Thoroughness and Preparation
Comment [5] Competent handling of a particular matter includes inquiry into and analysis of
the factual and legal elements of the problem, and use of methods and procedures meetingthe standards of competent practitioners. It also includes adequate preparation. …
Virginia Rule 1.1 – Competence
A lawyer shall provide competent representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness and preparation reasonably necessary forthe representation.
Thoroughness and Preparation
Comment [5] Competent handling of a particular matter includes inquiry into and analysis of
the factual and legal elements of the problem, and use of methods and procedures meetingthe standards of competent practitioners. It also includes adequate preparation. …
North Carolina Rule 1.1 – Competence
A lawyer shall not handle a legal matter that the lawyer knows or should know he or she is
not competent to handle without associating with a lawyer who is competent to handle thematter. Competent representation requires the legal knowledge, skill, thoroughness, andpreparation reasonably necessary for the representation. …
Thoroughness and Preparation
Comment [5] Competent handling of a particular matter includes inquiry into, and analysis
of, the factual and legal elements of the problem, and use of methods and procedures meetingthe standards of competent practitioners. It also includes adequate preparation. …
Distinguishing Professional Negligence
Comment [9] An error by a lawyer may constitute professional malpractice under theapplicable standard of care and subject the lawyer to civil liability. However, conduct that
constitutes a breach of the civil standard of care owed to a client giving rise to liability for
professional malpractice does not necessarily constitute a violation of the ethical duty torepresent a client competently. A lawyer who makes a good-faith effort to be prepared and tobe thorough will not generally be subject to professional discipline, although he or she may
be subject to a claim for malpractice. For example, a single error or omission made in goodfaith, absent aggravating circumstances, such as an error while performing a public records
search, is not usually indicative of a violation of the duty to represent a client competently.
Comment [10] Repeated failure to perform legal services competently is a violation of thisrule. A pattern of incompetent behavior demonstrates that a lawyer cannot or will not acquire
the knowledge and skills necessary for minimally competent practice. For example, a lawyer
who repeatedly provides legal services that are inadequate or who repeatedly provides legal
services that are unnecessary is not fulfilling his or her duty to be competent. This pattern of
behavior does not have to be the result of a dishonest or sinister motive, nor does it have toresult in damages to a client giving rise to a civil claim for malpractice in order to cast doubt
on the lawyer's ability to fulfill his or her professional responsibilities.

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DILIGENCE
ABA Model Rule 1.3 – Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
Comment [2] A lawyer's work load must be controlled so that each matter can be handled
competently.
Comment [3] Perhaps no professional shortcoming is more widely resented thanprocrastination. A client's interests often can be adversely affected by the passage of time or
the change of conditions; in extreme instances, as when a lawyer overlooks a statute oflimitations, the client's legal position may be destroyed. Even when the client's interests are
not affected in substance, however, unreasonable delay can cause a client needless anxiety
and undermine confidence in the lawyer's trustworthiness. A lawyer's duty to act withreasonable promptness, however, does not preclude the lawyer from agreeing to a reasonable
request for a postponement that will not prejudice the lawyer's client.
Virginia Rule 1.3(a) – Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
Comment [1] A lawyer should pursue a matter on behalf of a client despite opposition,
obstruction or personal inconvenience to the lawyer, and may take whatever lawful andethical measures are required to vindicate a client's cause or endeavor. A lawyer should act
with commitment and dedication to the interests of the client and with zeal in advocacy upon
the client's behalf. However, a lawyer is not bound to press for every advantage that might berealized for a client. A lawyer has professional discretion in determining the means by whicha matter should be pursued. … A lawyer's work load should be controlled so that eachmatter can be handled adequately.
Comment [3] Perhaps no professional shortcoming is more widely resented thanprocrastination. A client's interests often can be adversely affected by the passage of time or
the change of conditions; in extreme instances, as when a lawyer overlooks a statute oflimitations, the client's legal position may be destroyed. Even when the client's interests are
not affected in substance, however, unreasonable delay can cause a client needless anxiety
and undermine confidence in the lawyer's trustworthiness.
North Carolina Rule 1.3 – Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
Comment [2] A lawyer's work load must be controlled so that each matter can be handled
competently.
Comment [3] Perhaps no professional shortcoming is more widely resented thanprocrastination. A client's interests often can be adversely affected by the passage of time or
the change of conditions. In extreme instances, as when a lawyer overlooks a statute oflimitations, the client's legal position may be destroyed. Even when the client's interests are
not affected in substance, however, unreasonable delay can cause a client needless anxiety
and undermine confidence in the lawyer's trustworthiness. A lawyer's duty to act with3

reasonable promptness, however, does not preclude the lawyer from agreeing to a reasonable
request for a postponement that will not prejudice the lawyer's client.

Advocate
DUTY TO DISCLOSE ADVERSE AUTHORITY
ABA Model Rule 3.3 – Candor Toward the Tribunal(a) A lawyer shall not knowingly…
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to
the lawyer to be directly adverse to the position of the client and not disclosed by
opposing counsel.
Legal Argument
Comment [4] Legal argument based on a knowingly false representation of law constitutes
dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of
the law, but must recognize the existence of pertinent legal authorities. Furthermore, as statedin paragraph (a)(2), an advocate has a duty to disclose directly adverse authority in thecontrolling jurisdiction that has not been disclosed by the opposing party. The underlying
concept is that legal argument is a discussion seeking to determine the legal premises
properly applicable to the case.
Virginia Rule 3.3 – Candor Toward the Tribunal(a) A lawyer shall not knowingly…
(3) fail to disclose to the tribunal controlling legal authority in the subject jurisdiction
known to the lawyer to be adverse to the position of the client and not disclosed by
opposing counsel.
Misleading Legal Argument
Comment [4] Legal argument based on a knowingly false representation of law constitutes
dishonesty toward the tribunal. Furthermore, the complexity of law often makes it difficult
for a tribunal to be fully informed unless pertinent law is presented by the lawyers in thecause. A tribunal that is fully informed on the applicable law is better able to make a fair andaccurate determination of the matter before it. The underlying concept is that legal argument
is a discussion seeking to determine the legal premises properly applicable to the case. A
lawyer is not required to make a disinterested exposition of the law, but must recognize theexistence of pertinent legal authorities. Furthermore, as stated in paragraph (a)(3), an
advocate has a duty to disclose controlling adverse authority in the subject jurisdiction which
has not been disclosed by the opposing party.
North Carolina Rule 3.3 – Candor Toward the Tribunal(a) A lawyer shall not knowingly4…
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to
the lawyer to be directly adverse to the position of the client and not disclosed by
opposing counsel.
Legal Argument
Comment [4] Legal argument based on a knowingly false representation of law constitutes
dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of
the law, but must recognize the existence of pertinent legal authorities. Furthermore, as statedin paragraph (a)(2), an advocate has a duty to disclose directly adverse authority in thecontrolling jurisdiction that has not been disclosed by the opposing party. The underlying
concept is that legal argument is a discussion seeking to determine the legal premises
properly applicable to the case.

5The need to display competence and diligence (Rules 1.1 and 1.3) impacts multiple aspects of alawyer’s written work products. For example, competence requires that the lawyer do researchwhen needed, including a need to supply appropriate legal research and need to offer quality
legal analysis. These two topics, in turn, trigger a need to disclose adverse authority, referenced
in Rule 3.3. Need to comply with court rules also raises ethical considerations related tocompetence and diligence. Ethical Obligations, supra p. 1, at 50-58, 62. The need to complete
work in a timely manner is established by conduct rule requiring a lawyer’s diligence.

I.

Deficient Legal Research
Based on Rule 1.1, competent representation requires the lawyer to have legal knowledge
necessary for the representation. Furthermore, “inquiry into and analysis of … the legal
elements” is needed. Rule 1.1, Comment 5. Thus, a lawyer must perform any needed
legal research to acquire the necessary legal knowledge and to make sure knowledge iscurrent. This basic requirement includes research to identify and understand thegoverning law, use of a citator to assure that material is current and remains good law,and citation to authority in the written work product so the reader can locate thesupporting material.
A. Lack of Needed Research
Although competent representation does not automatically require a lawyer to havepast expertise in a particular topic, Rule 1.1, Comment 2, to the extent a lawyer is not
an expert in the relevant field, research is needed when required for the attorney tohave knowledge of the law.
This principle is displayed in Baldayaque v. United States, 338 F.3d 145 (2d Cir.
2003). After pleading guilty on a heroin charge and receiving a lengthy sentence
based on mandatory sentencing guidelines, Baldayaque, an illegal immigrant,
promptly had his wife hire Attorney Weinstein to file a writ of habeas corpus.
Without any research, the attorney advised the wife that time for filing the writ had
expired, although in reality many months were still available. Instead, the Attorney
filed a motion requesting a change of sentence to permit Baldayaque’s deportation;
the motion, which cited no legal authority, was denied. Eighteen months later, when
Baldayaque filed a motion on a pro se basis to modify his sentence, the court denied
that motion but supplied him information about filing a habeas petition, which
Baldayaque did on a pro se basis. Id. at 147-49. The court ruled that the attorney had
violated the state ethics rule (identical to Rule 1.1 of the ABA and Virginia rules andsimilar to the North Carolina rule). Id. at 152. It also ruled that the attorney’s behavior
was sufficiently egregious to constitute “extraordinary circumstances,” which can toll
the limitations period for the habeas petition, provided a prisoner has acted withreasonable diligence to protect his rights. Id. at 153.
Based on Maryland rules, the Court of Appeals of Maryland upheld indefinite
suspension of an attorney’s license. Att’y Grievance Comm’n v. Kane, 215 A.3d 242,282-83 (Md. 2019). In one of several representations that formed the basis for thiscase, Attorney Kane supplied poor advice to a client about the ability to pursue
6workers compensation or toxic tort claim if client accepted severance package from
employer. The attorney also failed to pursue either workers compensation or toxic tort
claim appropriately. Id. at 258-59; see also Att’y Grievance Comm’n v. James, 870
A.2d 229, 240–41 (Md. 2005) (upholding commission’s recommendation of
disbarment for an attorney who conducted no legal research, the most cursory ofwhich would show the attorney’s advice to client to have been wrong). Maryland
Rule 1.1 (competence) is identical to ABA Rule 1.1 and Virginia Rule 1.1. Although
North Carolina Rule 1.1 differs slightly, it encompasses the requirements forknowledge and thoroughness addressed in these cases.
The Supreme Court of Virginia has emphasized that competence includes “inquiry
into and analysis of the factual and legal elements of the problem” and “adequate
preparation.” Livingston v. Va. State Bar, 286 Va. 1, 11, 744 S.E.2d 220, 224 (2013)(quoting comment 5 associated with Va. Rule 1.1). In Livingston v. Virginia State
Bar, the state bar charged a prosecutor with incompetent representation following acase in which the prosecutor filed a series of three indictments containing multiple
errors, including filing a charge that did not fit the facts, misidentifying crimes
charged, arguing applicability of a case he later admitted he had not read prior topresenting the case to the grand jury, and missing deadlines. Id. at 5-8, 744 S.E.2d at
221-23. The Supreme Court of Virginia noted “negligence without more” or mere
“incorrect legal research alone” does not necessarily display lack of competence. In
this circumstance, however, the prosecutor admitted making three mistakes: (1)charging a defendant inappropriately based on an incorrect legal conclusion; (2) filingan indictment for the wrong crime and failing to make correction either at trial or on
appeal even after the error had become apparent; and (3) missing the deadline to filefor appeal. Id. at 12, 744 S.E.2d at 225. The court ruled that this series of errors
showed that the prosecutor “failed to provide the ‘thoroughness and preparation
reasonably necessary for the representation’” required by Rule 1.1. Id. It noted thateven when an attorney has necessary legal knowledge, Rule 1.1 requires competenthandling of each particular manner. Id. In this situation, the three indictments werebased upon the prosecutor’s “failure to analyze the evidence and the elements of thecharges he brought against [the defendant].” Id. The prosecutor received a public
reprimand. In re Livingston, No. 10-031-084027 (Va. State Bar Disc. Bd. Dec. 23,
2013).
Other courts also have ruled that although attorneys can make mistakes, an attorney“is expected, however, to possess knowledge of those plain and elementary principlesof law which are commonly known by well informed attorneys, and to discover thoseadditional rules of law [that] may readily be found by standard research techniques.”
See, e.g., Smith v. Lewis, 530 P.2d 589, 595 (Cal. 1975) (affirming malpractice award
against attorney and observing that although an attorney may make strategic ortactical decisions for client, “[t]here is nothing strategic or tactical about ignorance.”)(quoting Pineda v. Craven, 424 F.2d 369, 372 (9th Cir. 1970)); In re EkekweKauffman, 210 A.2d 775, 787 (D.C. 2019) (upholding three-year suspension of
attorney in part because failure to conduct factual or legal research prior to filingclaim or to make appropriate corrections during litigation showed violation of rule
requiring professional competence).
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B. Failure to Use Citators
An important component of competent legal research is use of a citator to assure thatthe authorities relied upon are good law. Bast & Harrell, supra p. 1, at 51 n.4. In
Fletcher v. Smith, 858 F. Supp. 169, 172 (M.D. Fla. 1994), the court criticizedplaintiffs’ citation of a case that had been overruled and another that had been
reversed and warned against future “research failures.” In another case, as it
dismissed a claim, the court criticized what it characterized as a litigant’s failure touse a citator or choice to simply “ignore the body of the law that had developed” overthe past twenty years. Jenkel-Davidson Optical Co. v. Roberts Instrument Co., No. 58
C 347 (3), 1961 WL 8150, at *6 (E.D. Mo. Mar. 31, 1961).
C. Missing Citation to Legal Authority
Citation to legal authority, including use of pincites, is recommended to documentcompetent legal research. See State v. Coxton, No. COA15–575–2, 2016 WL
4091181, at *3 (N.C. Ct. App. Aug. 2, 2016) (criticizing defendant’s failure to cite
legal authority for key arguments); State v. Richardson, No. COA10–1305, 2011 WL
2462718, at *6 (N.C. Ct. App. June 21, 2011) (ruling that a bare assertion in a brief
without citation to legal authority or significant legal argument was insufficient toraise the issue before the court); Buchanan v. Buchanan, 14 Va. App. 53, 56 415
S.E.2d 237, 239 (1992) (ruling that “[s]tatements unsupported by argument, authority,or citations to the record do not merit appellate consideration,” and that the court will
not search the record for errors not explained and analyzed in the brief) (quoted innumerous later cases including McCallum v. Salazar, 49 Va. App. 51, 56, 636 S.E.2d486, 488 (2006); Boyd v. Cnty. of Henrico, 42 Va. App. 495, 506, 592 S.E.2d 768,
773 (2004); Bennett v. Commonwealth, 35 Va. App. 442, 452, 546 S.E.2d 209, 213(2001)); Kahn v. Kahn, No. 1997-13-4, 2014 WL 1830978, at *3 (Va. Ct. App. May
6, 2014); Howard v. Oakland Tribune, 245 Cal. Rptr. 449, 451 n.6 (Cal Ct. App.
1988) (expressing court’s annoyance with appellants’ failure to provide complete andaccurate citations, as well as omission of pincites); State v. Montano, 956 N.W.2d643, 652 (Minn. 2021) (refusing to address claims that lacked legal argument
supported by citation to legal authority); Deede v. Deede, 2018 WY 92, ¶ 11, 423
P.3d 940, 944 (Wyo. 2018) (awarding attorney’s fees when opposition’s brief
contained only three sentences of substantive argument with no support from any
legal authority). Courts also emphasize the importance of pincites to help the court
understand how the case supports the argument. See Grabowski v. Arnold, No. A5886-17T2, 2020 WL 3251168, at *4 (N.J. Super. Ct. App. Div. June 16, 2020)(complaining that general citations without pincites were used at times for cases that
did not support the proposition).
Courts have been particularly disturbed by lawyers who plagiarize. Gerald Lebovits,
Legal-Writing Ethics, Part II, N.Y. State B.J., Nov./Dec. 2005, at 58. For example, afederal district court reprimanded an attorney that plagiarized large parts of the briefby lifting directly from another court’s opinion with only slight modifications toinsert facts of the current case. Pagen Velez v. Laboy Alvarado, 145 F. Supp. 2d 146,
160 (D.P.R. 2001). The court characterized the lawyer’s behavior as “intolerable,”8

noting that the brief was a “disservice” to opposing party, the lawyer’s client, and thecourt. Id. at 161.
Court rules typically require citation to the record and to legal authorities that support
the client’s case. Omission of these citations has been criticized and can lead todismissal or sanctions. For example, the Supreme Court of North Carolina rejected
multiple assignments of error, noting that exceptions of error not supported by“reason, argument, or citation of authority, may be treated as abandoned” based on
North Carolina Supreme Court Rule 28. Peek v. Wachovia Bank & Tr. Co., 242 N.C.
1, 14, 16-17, 86 S.E.2d 745, 754, 756-57 (1955).
The Court of Appeals of North Carolina affirmed the portion of a summary judgment
ruling based on defendants’ sovereign immunity because “appellants’ argument waslimited to declaratory statements unsupported by any citation to authority.” Lopp v.
Anderson, 251 N.C. App. 161, 167, 795 S.E.2d 770, 775 (2016). Based on Rule28(b)(6) of the North Carolina Rules of Appellate Procedure, the court treated thesearguments as abandoned. Id.; see also State ex rel. Cooper v. Ridgeway Brands Mfg.,
LLC, 188 N.C. App. 302, 306, 655 S.E.2d 446, 449 (2008) (affirming trial court’s
decision that it lacked personal jurisdiction because based on Rule 28(b)(6), plaintiff
waived its argument that defendant out-of-state corporation was an alter ego of a
North Carolina corporation because appellant cited no legal authority supporting its
claim).
The Court of Appeals of Virginia noted that “appellate court is not a depository inwhich the appellant may dump the burden of argument and research.” Fadness v.
Fadness, 52 Va. App. 833, 850, 667 S.E.2d 857, 865 (2008). It noted Virginia Rule ofAppellate Procedure 5(A):20(e) requires that the brief contain principles of law,argument, and legal authorities to support the argument. It also noted that ignoring
this requirement and attempting to make a decision on the merits would require thecourt to simultaneously be the advocate for the appellant and to judge the merits ofappellant’s position. Id. The court observed that this litigation had been lengthy andexpensive. Both parties made numerous challenges to trial-level decisions without
offer of support. The appellate court rejected all arguments, noting that “The ‘throw
everything at the wall and hope something sticks’ approach utilized in this appeal is
as unappreciated as it is ineffective.” Id. at 851, 667 S.E.2d at 866.
In Ceres Marine Terminals v. Armstrong, the Court of Appeals of Virginia affirmed
an employment commission ruling when appellant’s brief failed to provide the“principles of law and authorities” required by Virginia Rule of Appellate Procedure
5A:20. 59 Va. App. 694, 708-10, 722 S.E.2d 301, 308-09 (2012); see also Gene
Forbes Enters. v. Cooper, No. 2320–14–2, 2015 WL 3549987 (Va. Ct. App. June 9,2015) (ruling that certain assignments of error raised by employer were waived basedon Rule 5A:20 because employer cited no legal authority). The Court of Appeals of
Virginia applied Rule 5A:20 again when it ruled that appellant waived an argument
challenging constitutionality of mandatory minimum sentencing in a criminal statutebecause appellant cited no legal authority for his position. Prekker v. Commonwealth,66 Va. App. 103, 122, 782 S.E.2d 604, 613 (2016); see also Atkins v. Commonwealth,957 Va. App. 2, 20, 698 S.E.2d 249, 258 (2010) (ruling that appellant waived claimthat due process rights were violated by failure to supply legal authority or argument);
Epps v. Commonwealth, 46 Va. App. 161, 191, 616 S.E.2d 67, 82 (2010) (rejecting anargument in a civil contempt appeal based on failure to provide argument andauthorities required by Rule 5A:20); Mawyer v. Commonwealth, No. 1609–05–2,
2006 WL 3589070, at *2 (Va. Ct. App. Dec. 12, 2006) (ruling that appellant waived
challenge to trial court’s refusal to postpone case by failing to cite any authorities insupport of the argument).
In a recent child custody determination, the Court of Appeals of Virginia ruled thatthe mother waived multiple assignments of error by failing to provide an argumentthat includes principles of law and citation to legal authorities. Khakee v.
Rodenberger, No. 1030-19-4, 2020 WL 890398, at *2 (Va. Ct. App. Feb. 25, 2020).
The court commented that “statements unsupported by argument, authority or
citations to the record do not merit appellate consideration.” Id.
In TSC Express Co. v. G.H. Bass & Co. (In re Allen), the District of Maine denied
summary judgment to both parties, criticizing both parties’ failure to provide citations
to the record and use of overly long briefs. 176 B.R. 91, 95 n.2 (D. Me. 1994).
Some court rules also require use of pinpoint citations. E.g., Kan. Sup. Ct. R. 6.02.
However, the Court of Appeals of Kansas rejected the state’s assertion that a pro-se
appellant’s failure to provide pinpoint citations was a waiver of argument underKansas Supreme Court Rule 6.02, noting that although the appellant’s brief may lacksome pinpoint citations and the brief lacked ideal organization, enough citations were
provided to permit review. Davis v. State, No. 114,436, 2016 WL 5344256, at *6(Kan. Ct. App. Sept. 23, 2016).
Even though courts are rigorous in demanding that arguments be based on citation tolegal authority, an attorney can legitimately use material from a fellow attorney’s
work product without attribution. A North Carolina legal ethics opinion notes that alawyer does not commit an ethical violation by incorporating material from anotherattorney’s work product such as a brief, contract or pleading into a work productwithout attributing the other attorney. Attribution When Using the Written Work of
Another, 2008 N.C. Formal Ethics Opinion 14 (Oct. 23, 2009).
D. Failure to Cite Adverse Authority
A lawyer is required to disclose governing adverse legal authority to a tribunal. ABAModel Rule 3.3(a)(2); North Carolina Rule 3.3(a)(2); Virginia Rule 3.3(a)(3).
Although a lawyer is not expected to provide a neutral exposition of the law andneeds to serve as an advocate, the lawyer cannot fail to disclose legal authority in thecontrolling jurisdiction that is directly adverse to the client if opposing counsel has
not already identified the authority. Rule 3.3, Comment 4.
In State v. McNeil, the Court of Appeals of North Carolina chastised appellant’s
attorney, reminding her of her duty of candor, because she failed to mention a case10

directly adverse to her client’s position. No. COA11-708, 2012 WL 1337365, at *7
n.3 (N.C. Ct. App. April 17, 2012). Although the duty to disclose rested on theappellant, the court also reminded the opposing counsel to be more careful regarding
the need to be diligent to find all controlling authority, as opposing counsel appeared
to have missed the case. Id.
This issue also was addressed by the United States District Court for the District ofMaryland in Massey v. Prince George’s County, 907 F. Supp. 138 (D. Md. 1995).
This case involved a state law tort claim and an excessive force claim under 42
U.S.C. § 1983 following a situation in which a police dog injured plaintiff. The court
granted summary judgment to defendants on the section 1983 claims based on
defendants’ brief that relied primarily on a case from a different federal circuit andthe plaintiff filed only a single-page response that cited nothing other thandefendant’s case. Oral argument also focused only on this same case. When the court
granted summary judgment on the section 1983 claims, it invited parties to submit
supplemental statements regarding the remaining state law tort claim. Id. at 140.
Plaintiff’s statement identified a Fourth Circuit case that was directly on point andadverse to defendants on the section 1983 claim, although the case had not been
mentioned at any earlier point. Id. The court reversed its earlier summary judgment,
noting that the directly on-point and adverse authority “mandate[d]” reinstatement of
the claim. Id. It noted that attorneys on both sides of the dispute had violated
professionalism rules. Plaintiff’s counsel violated Rules 1.1 and 1.3 because the work
products suggested failure to conduct basic research and lack of diligence. Id. at 14142. The court noted that defense counsel’s actions raised a “far more serious
concern,” noting that if overlooking the controlling case was an oversight, it was“glaring and extremely troublesome.” Id. at 142. Not only was the case directly on
point, Prince William County, a defendant here, also was a defendant in thecontrolling case and at least one attorney on brief for the controlling case still worked
for the county. Id. The court ordered defense counsel to show cause regarding why
the controlling case was omitted. Id. In a later supplementary opinion, the court
rejected counsel’s explanation that the controlling case was not genuinely adverse
because it featured slightly different facts that could be distinguished. Massey v.
Prince George’s Cnty., 918 F. Supp. 905, 907 (D. Md. 1996). The court viewed any
distinctions as slight, noting that the case was “very much on point, i.e., ‘directly
adverse.’” Id. Although the court did not sanction attorneys, it chastised them forviolation of the professional rules of conduct and stated it will notify judges in every
case involving the same issue in which the county failed to cite the governing case.
Id. at 910.

II.

Quality Legal Analysis
Competence also requires adequate legal analysis and basic writing skills. To reach a justresolution, the courts rely on lawyers to present the pertinent law and explain its
application to their clients’ specific situation. Margaret Z. Johns, Teaching Professional
Responsibility and Professionalism in Legal Writing, 40 J. Legal Educ. 501, 507 (1990).
Thus, an important part of a lawyer’s professional responsibility is to explain how the law
should apply for all issues addressed in a brief. When confronted with inadequate or11

incomprehensible legal analysis, a court may simply view an issue as waived, sanction
the attorney, or refer the attorney to the governing disciplinary authority.
A. Missing Legal Analysis
A North Carolina appellate court ruled that an attorney abandoned issues in a
disciplinary proceeding for which the attorney’s brief provided no argument. N.C.
State Bar v. Burford, No. COA12–909, 2013 WL 1121360, at *2 (N.C. Ct. App. Mar.
19, 2013). The court noted that, “to review Mr. Burford’s issues, we would have to do
the research and analysis that he did not bother to undertake—in other words, wewould have to create an appeal for him. We decline to do so.” Id. at *3 (citations
omitted). North Carolina’s Supreme Court also provided guidance on this topic,
noting that “It is not the role of the appellate courts, however, to create an appeal for
an appellant.” Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361(2005); see also Goodson v. P.H. Glatfelter Co., 171 N.C. App. 596, 606, 615 S.E.2d
350, 358 (2005) (“It is not the duty of this Court to supplement an appellant's briefwith legal authority or arguments not contained therein.”).
When discussing poor briefs in the context of specialized employment law litigation,
Associate Professor Scott A. Moss of the University of Colorado Law School
observed that an attorney generally competent in some areas of legal practice can be
an incompetent brief writer. Scott A. Moss, Bad Briefs, Bad Law, Bad Markets:
Documenting the Poor Quality of Plaintiffs’ Briefs, It’s Impact on the Law, and theMarket Failure It Represents, 63 Emory L.J. 59, 121 (2013). The Court of Appeals of
Maryland observed this principle in Attorney Grievance Commission v. McClain, 956
A.2d 135, 140 (Md. 2008), when it ruled that a competent trial lawyer was anincompetent brief writer who violated Rule 1.1 by submitting a brief that ignored
mandatory authority and failed to cite caselaw supporting the client’s position. See
also Rowe v. Nicholson, No. 05-222, 2007 WL 1470305, at *6 (Ct. Vet. App. Apr. 26,
2007) (reminding the lawyers that their professional obligations while representing
clients include providing legal support for their assertions).
Some courts have treated briefs with poor quality analysis as a violation of court
rules. For example, in Bledsoe v. County of Wilkes, the Court of Appeals of North
Carolina observed that “Rules of Appellate Procedure are Mandatory” and dismissed
an appeal characterized by multiple violations. 135 N.C. App. 124, 125, 519 S.E.2d316, 317 (1999). The same court noted that “we are unable to undertake a meaningful
review of this appeal” as a result of multiple violations of Rule 28 of the North
Carolina Rules of Appellate Procedure, which governs the function and content ofbriefs. Smith v. TD Ameritrade, Inc., No. COA10–1221, 2011 WL 1900927, at *3(N.C. Ct. App. May 17, 2011). The brief failed to define the issues clearly, contained
numerous typographical errors, didn’t state the grounds for appellate review, supplied
only a list of isolated facts rather than a complete factual summary, omitted standardsof review, and failed to cite legal authorities to support the assertions. Id. The court
dismissed the appeal, observing that Rule 28(a) explains that “[t]he function of all
briefs ... is to define clearly the issues presented to the reviewing court and to present
the arguments and authorities upon which the parties rely in support of their12respective positions thereon.” Id. at *4; see also Steingress v. Steingress, 350 N.C. 64,
511 S.E.2d 298 (1999) (affirming a judgment that dismissed defendant's appeal basedon failure to comply with Rules 26(g) and 28(b)); Selwyn Vill. Homeowners Ass'n v.
Cline & Co., 186 N.C. App. 645, 651 S.E.2d 909 (2007) (dismissing defendant's
appeal for numerous violations of the North Carolina Rules of Appellate Procedure,
including Rules 28(b)(6) and 26(g), and for failure to amend or correct its admitted
violations); Capps v. NW Sign Indus. of N.C., Inc., 186 N.C. App. 616, 622, 652
S.E.2d 372, 378 (2007) (dismissing defendant's brief for failure to follow Rules
10(c)(1) and 28(b)(6)).
In Tabor v. Kaufman, the court sanctioned appellant’s attorney for gross violations of
the Rules of Appellate Procedure, even though it ruled in favor of the appellant andreversed the trial court’s decision. 196 N.C. App. 745, 747, 750, 675 S.E.2d 701, 703,
704 (2009). The brief violated the rules by omitting the required statement of thegrounds for appellate review, omitting the required procedural history, omitting therequired assignment of error, failing to reference the assignment of error and record
page numbers, failing to number pages appropriately, and failing to provide an email
address for the attorney who signed the brief. Although the court did not grant theappellee’s motion to dismiss the appeal, it ordered the appellant’s attorney to pay
double the appellate costs for these “gross” and “substantial” violations. Id. at 747,
376 S.E.2d at 703.
The Court of Appeals of Wisconsin encapsulated the idea well when it acknowledgedthat “it is unreasonable to expect every attorney in Wisconsin to construct arguments
as if they were authored by Learned Hand” but also noted that “a line must be drawn
separating adequate from inadequate briefs in order to give some life” to the appellate
rules. Morters v. Barr, No. 01-2011, 2003 WL 115359, at *3, 2003 WI App 42, ¶ 12
(Jan. 14, 2003). Based on a standard dictionary definition, the court reasoned that an“argument” needs to present “‘a coherent series of reasons, statements, or facts
intended to support or establish a point of view.’” Id. at *3, 2003 WI App ¶ 13
(quoting from Websters Third New International Dictionary (unbar. 1993)). The court
viewed this definition as requiring “some analysis of the law and the facts of the caseas well as an explanation of how the law as applied to those facts yields a certain
desired result.” Id. The brief filed in this case, which contained an argument
consisting of extensive block quotations of law, preceded by “one or two vague anddirectionless sentences concerning appellants’ case,” fell short of the requirement thatthe brief contain an argument. Id. Based on the brief’s violation of the appellate rules,
the court awarded costs and fees, including attorney fees, to respondent. Id. at *4,
2003 WI App ¶ 16.
Federal courts have repeatedly sanctioned violations of Rule 28 of the Federal Rulesof Appellate Procedure, which governs the brief. Generally, courts adopt the viewthat the “court cannot be called upon to supply the legal research and organization toflesh out a party's arguments.” Smith v. Town of Eaton, 910 F.2d 1469, 1471 (7th Cir.
1990). For example, in John v. Barron, the court ruled that a brief with a one-pageargument that failed to cite any caselaw and made only a single erroneous reference
to a statute violated Federal Rule of Appellate Procedure 28(a)(4), which requires that13

appellant’s argument “contain the contentions of the appellant with respect to theissues presented, and the reasons therefor, with citations to the authorities, statutes
and parts of the record relied on.” 897 F.2d 1387, 1393 (7th Cir. 1990). The court also
expressed concerns about failure to cite the record and misrepresentation of facts. It
noted an intent to send a copy of the decision to the attorney disciplinary committee
in the attorney’s home state. Id. at 1394.
The same principle was applied in Smith v. Town of Eaton when an attorney supplieda lengthy but incoherent argument, as the court noted that both situations the lengthy
but incoherent argument and a missing argument, “the court is frustrated inperforming its function of review and evaluation of the judgment before it.” Smith,910 F.2d at 1471.
Courts adopt the approach that it is not the court’s responsibility to research anddevelop the argument for the litigant. In Ernst Haas Studio, Inc. v. Palm Press, Inc.,
the Second Circuit commented that “Appellant’s Brief is at best an invitation to thecourt to scour, research any legal theory that comes to mind, and serve generally as an
advocate for the appellant. We decline the invitation.” 164 F.3d 110, 112 (2d Cir.
1999). In addition to affirming the trial court’s dismissal, the court sanctioned theattorney by making him solely responsible for the opposition’s attorney fees. Id. at113. Similarly, the Ninth Circuit dismissed an appeal when the appellant had ignored
governing rules and “essentially tossed this bankruptcy case in our laps, leaving it to
us to figure out the relevant facts and law.” In re O’Brien, 312 F.3d 1135, 1137 (9thCir. 2002). The court also commented about the enormous amount of time wasted
when attorneys fail to provide proper briefs and excerpts of the record. Id.
B. Incomprehensible Writing
Clarity is essential for good brief writing. Numerous attorneys have been sanctioned
for submission of briefs containing incomprehensible arguments. Thomas R.
Haggard, Good Writing as a Professional Responsibility, S.C. Law., May/June 2000,
at 11. For example, the Supreme Court of Kentucky ruled that an attorney violated thestate competency rule by submitting a brief that was “little more than fifteen unclear
and ungrammatical sentences slapped together as two pages of unedited text with anunintelligible message.” Ky. Bar Ass’n v. Brown, 14 S.W.3d 916, 918-19 (Ky. 2000)(suspending attorney from legal practice for sixty days). The Supreme Court ofIllinois placed an attorney on inactive status because the attorney “lacked thefundamental skill of drafting pleadings and briefs,” producing work products thatwere “incomprehensible.” In re Hogan, 490 N.E.2d 1280, 1281-82 (Ill. 1986). Whenthe attorney applied for reinstatement two years later, the request was denied based onlack of evidence of any basis for improvement and because the petition was“incomprehensible.” In re Hogan, No. 98-RS-2552, 1999 WL 802922, at *1 (Ill.
Att’y Registration & Disciplinary Comm’n Feb. 15, 1998).
An Indiana court suggested that two lawyers “give serious consideration to notpracticing” in that court until they had “demonstrably enhanced their practice skills”
after noting that the lawyers’ writing was “far below” the quality of work the court14was accustomed to receiving from other lawyers. Vandeventer v. Wabash Nat’l Corp.,
893 F. Supp. 827, 859 n.43 (N.D. Ind. 1995).
Poor writing can cost money for the lawyers and their client. The Court of Appeals of
New York assessed costs against an appellant due to the “poorly written” brief inwhich the “argument wander[ed] aimlessly through myriad irrelevant matters,” thus
creating an “unwarranted burden” for the court. Slater v. Gallman, 339 N.E.2d 863,
864-65 (N.Y. 1975).

III.

Excessive Foundational Writing Errors
An attorney also can be ruled incompetent based on submission of documents withexcessive foundational errors such as poor spelling, failure to comply with basic grammar
expectations, or typographical errors. The Supreme Court of Minnesota publicly
reprimanded an attorney for violation of a state ethics rule when the attorney filed a seriesof “documents rendered unintelligible by numerous spelling, grammatical, andtypographical errors … sufficiently serious that they amounted to incompetent
representation.” In re Hawkins, 502 N.W.2d 770, 770–71 (Minn. 1993). The state rule
involved matches ABA and Virginia Rule 1.1 and is similar to the corresponding North
Carolina rule.
In the criminal law arena, however, other courts have ruled that an indictment is legally
sufficient despite significant grammar errors, provided it identifies the crime. For
example, the Supreme Court of North Carolina stated that “neither bad punctuation nor
bad grammar vitiate an indictment.” State v. Hammonds, 241 N.C. 226, 229, 85 S.E.2d133, 146 (1954); see also State v. Hill, 262 N.C. App. 113, 115, 821 S.E.2d 631, 633(2018) (ruling that grammatical errors were not fatal, provided the indictment’s meaning
was clear); United States v. Macedo, 406 F.3d 778, 787 (7th Cir. 2005) (ruling thattypographical errors in an indictment were not fatal because the issue remained clear andaccused had sufficient notice of the charges to not be prejudiced); United States v.
Logwood, 360 F.2d 905, 907 (7th Cir. 1966) (ruling that “unartfully drawn” indictment
containing “obvious use of the inappropriate tense” was sufficient because it statedelements of the offence well enough for the accused to be prepared to respond
appropriately); Henderson v. State, 445 So. 2d 1364, 1368 (Miss. 1984) (ruling that
despite being “grammatically atrocious,” an indictment was sufficient because it notified
the defendant of “the nature and cause of accusation against him.”)IV.

Failure to Comply with Court Rules
Failure to follow court rules may suggest incompetence. Bast & Harrell, supra p. 1, at 52.
In Henning v. Kaye, the Supreme Court of South Carolina observed that appellate court
rules are not “mere technicalities” but instead provide “an orderly mechanism throughwhich to guide appeals.” 415 S.E.2d 794, 794 (S.C. 1992). A wide variety of rules
violations have drawn criticism.

15

A. Improper Brief Organization
The Supreme Court of South Carolina noted in Henning v. Kaye it would be justified
in dismissing an appeal based on a brief with numerous violations, including failure
to organize the brief’s components appropriately, inappropriate labeling, failure toalphabetize the table of authorities, and omission citations to the record. Id. The court
also criticized the insertion of contested material in the statement of the case. Id.
B. Exceeding Length Limitations
Many techniques have been criticized as the basis for ignoring length limitation
imposed in court rules. In addition to simply ignoring the word or page limitation incourt rules, attorneys have tried reducing font or margins, moving text from the
double-spaced body of the brief into footnotes, moving material into appendices, andincorporating other documents by reference rather than putting the argument into thecurrent brief.
In Kornegay v. Aspen Asset Group., LLC, No. 04 CVS 22242, 2007 WL 2570840, at*3 (N.C. Super. Ct. Feb. 28, 2007), the court observed that the brief violated both thelength limitation and rule requiring the attorney to certify compliance with the word
count limitation. The court suggested that the “lawyers read carefully this Court’srules, as future violations will result in sanctions.” Id.
Another court granted appellate attorney fees to the appellee based upon theappellant’s procedural bad faith by filing a brief that failed to comply with appellate
rules in multiple respects including an exceedance of the length limitation and use of
an impermissibly small font. Catellier v. Depco, Inc., 696 N.E.2d 75, 79 (Ind. Ct.
App. 1998).
In Allen v. G.H. Bass & Co. (In re TSC Express Co.), 176 B.R. 91, 95 n.2 (D. Me.
1994), the court denied motions for summary judgment filed by both parties as bothbriefs failed to comply with local rules, stating that “[t]he briefs of both sides areprolix, verbose, and full of inaccuracies, misstatements and contradictions. The
lawyering on behalf of both parties falls woefully short of the standards to which
attorneys practicing before this court have been traditionally held.”
In Insulated Panel Co. v. Industrial Commission, 743 N.E.2d 1038, 1040 (Ill. App.
Ct. 2001), an Illinois appellate court ruled that a trial court had not abused its
discretion by refusing to use more than first ten pages of a fifty-page brief when the
court had explicitly directed litigants to confine briefs to no longer than ten pages.
The court reasoned that a court has inherent power to control own docket. Id.
In another Illinois appellate case, the court cited a rules violation based on an
attorney’s use of single-spaced footnotes for material that should appear in the
double-spaced main text. Van Winkle v. Owens-Corning Fiberglas Corp., 683 N.E.2d985, 989 (Ill. App. Ct. 1997). The court observed that this technique of “[u]sing
footnotes to circumnavigate the page limitation violates ‘the spirit and probably …
the letter of the law.’” Id. The court observed that appellate rules imposing page16

limitation and allowing only sparing use of footnotes were “not inconsequential” andnoted that the guidance “facilitates the clear and orderly presentation of arguments.”
Id. at 990. The court noted that in the future, it may simply ignore such footnotes used
to ignore the intended length limitation. Id. Numerous other courts also havecriticized use of footnotes to evade length limitations.
Some courts have stricken briefs or imposed other consequences for use of footnotes
to violate length limitations. For example, in TK-7 Corp. v. Estate of Barbouti, 966
F.2d 578, 579 (10th Cir. 1992), the Tenth Circuit granted a motion to strike a briefthat brief containing more than 100 footnotes when attorneys responded to the court’srefusal to grant their motion to file a sixty-page brief by simply moving nine pages oftext into footnotes and reducing type size. The court referenced the techniques use as
an “undergraduate gambit.” Id.; see also Varda, Inc. v. Ins. Co. of N. Am., 45 F.3d
634, 640 (2d Cir. 1995) (denying award of costs when the brief violated length
limitation by using single-spaced footnotes that contained significant amounts ofsubstantive argument); Anderson v. Alpha Portland Indus., Inc., 836 F.2d 1512 (8thCir. 1988) (characterizing use of 189 footnotes to comply with length limitation as
violative of the “spirit, if not the letter” of Federal Rules of Appellate Procedure andnoting that court permission is required to exceed length limitation); Westinghouse
Elec. Co. v. NLRB, 809 F.2d 419, 424-25 (7th Cir. 1987) (imposing $1000 fine to be
paid by an attorney who used slightly reduced font, slightly reduced margins, andslightly reduced line spacing in an attempt to hide the effect of stuffing a seventypage brief into the allotted fifty pages); Cheverez v. Commn’r, Slip op., No. 18-CV0711MWP, 2020 WL 561036, at *2 n.1 (W.D.N.Y. Feb. 5, 2020) (observing that useof extensive single-spaced footnotes to achieve compliance with the page limitation
was inappropriate and cautioning attorney against future use of this technique); Ad
Hoc Shrimp Trade Action Comm. v. United States, 33 Ct. Int’l Trade 1906, 1931 n.20
(2009) (noting that attorney’s use of footnotes to evade length limitation was
inappropriate and that attorney instead should have filed motion to exceed page
limitation).
Numbering tricks also have been criticized as a means of evading length limitation.
See Fleming v. Cnty. of Kane, 855 F.2d 496, 498 (7th Cir. 1988) (characterizing
choice to use alternate numbering such as roman numerals for certain brief parts suchas question presented or statement of the case as violative of rules that impose alength limitation on total brief, which includes all brief parts).
Use of an appendix as a means to evade the length limitation also has been tried andrejected. See, e.g., State v. Bolton, 896 P.2d 830, 838 (Ariz. 1995) (striking text inseveral appendices that presented additional argument that would not fit into length
limitation as a violation of appellate rules and also ruling those issues in thesematerials had been waived).
The technique of incorporating by reference analysis from earlier documents also has
been criticized as a means of violating court rules. In Guerrero v. Tarrant County
Mortician Services, 977 S.W.2d 829, 832-33 (Tex. Ct. App. 1998), the court refused
to consider arguments regarding official immunity that appellants incorporated by17reference from their earlier motion for summary judgment. The same technique also
was rejected in Glover v. Columbia Fort Bend Hospital, in which a pro se litigant
initially filed a brief almost double the allowable length and then submitted ashortened brief that incorporated numerous arguments by reference to the originallyrejected brief. No. 06-01-00101-CV, 2002 WL 1430783, at *5 (Tex. Ct. App. July 3,2002).
C. Violations of Appellate Rules Violations Via Poor Quality Brief.
As noted earlier, numerous courts have expressed frustration with briefs that either
lack appropriate reliance on legal authority or that are incomprehensible. Among thecases discussed in that earlier material, occasionally, the court will characterize thepoor brief as an inappropriate violation of procedural rules that require citation to therecord or to legal authority. See infra at 9-10.

V. Failure to Do Timely Work to Display Required Diligence
Although diligence arises in many circumstances, this CLE focuses on ethical issues
associated with writing. Diligence issues related to legal writing most often seems to arise
when an attorney fails to make timely submission of a document. Compliance with deadlines
is a required part of diligence under Rule 1.1.
The Supreme Court of Virginia ruled that an attorney’s failure to timely file a notice ofappeal, combined with other failures to complete undertaking for which he had been hired,violated Rule 1.3 and warranted a temporary suspension of the attorney’s license to practicelaw. Green v. Va. State Bar ex rel. Seventh Dist. Comm., 274 Va. 775, 797, 782, 652 S.E.2d118, 121, 129 (2007).
The Court of Appeals of Maryland recently disbarred an attorney who failed to file an
opening appellate brief or appendix before the court’s deadline. Att'y Grievance Comm'n v.
McCarthy, No. 72, Sept. Term, 2019, 2021 WL 2150202, at *1 (Md. May 27, 2021). The
attorney also falsely told the client he was working with the court to have the case reinstated
and failed to notify the client his license had been suspended. The court ruled that theattorney violated diligence requirements as well as other rules of professional conduct. Id. at*16-18.
The Supreme Court of Ohio also upheld attorney disbarment when the attorney missed astatute of limitations and misappropriated client funds. Disciplinary Counsel v. Burchinal,
2021-Ohio-774, ___ N.E.2d ___, at ¶¶ 1, 48.
The Wisconsin Supreme Court imposed a one-year suspension, fines, and a restitution
requirement against an attorney who displayed multiple episodes of misconduct including
repeated missed deadlines over a series of eight representations. Matter of Disciplinary Proc.
Against Davis, 2020 WI 48, ¶¶ 11. 14-21, 392 Wis. 2d 21, 27-29, 33-34, 943 N.W.2d 885,
887-88, 891-92. But see Iowa Sup. Ct. Att’y Disciplinary Bd. v. Tindal, 949 N.W.2d 637(Iowa 2020) (imposing public reprimand rather than board’s recommended suspension for
attorney who had been issued default notices by the supreme court in twenty-nine cases,18

reasoning that many (but not all) defaults already had been punished by a 2018 temporary
suspension and because the attorney had subsequently put in place measures to avoid future
missed deadlines).
In Idaho State Bar v. Tway, an attorney was suspended from practice for five years when she
missed a statute of limitations, displayed some irregularities with the client’s trust account,and had poor client communication. 919 P.2d 323, 324-26 (Idaho 1996). The attorney was
hired to handle a police brutality case. Based on the state code and annotations, the attorney
believed the governing statute of limitations was three years. However, because he failed touse a citator, he missed a more recent case in which the state supreme court held that a civilrights action was subject to a shorter, two-year statute of limitations. As a result, when theattorney filed the complaint based upon his incomplete research, the limitations period
already had expired. Id. The Supreme Court suspended the attorney for five years andrequired the attorney to return his client’s deposit and reimburse the state bar for costs. Id.

19

Resources Cited
Rules of Professional Conduct•

Model Rules of Pro. Conduct (Am. Bar Ass’n 2020),
https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents/•

Va. Rules of Pro. Conduct (Va. State Bar 2018), https://www.vsb.org/proguidelines/index.php/main/print_view•

N.C. Rules of Pro. Conduct (N.C. State Bar 2021), https://www.ncbar.gov/forlawyers/ethics/rules-of-professional-conduct/

Virginia Cases•

Atkins v. Commonwealth, 57 Va. App. 2, 698 S.E.2d 249 (2010).

•

Bennett v. Commonwealth, 35 Va. App. 442, 546 S.E.2d 209 (2001).

•

Boyd v. Cnty. of Henrico, 42 Va. App. 495, 592 S.E.2d 768 (2004).

•

Buchanan v. Buchanan, 14 Va. App. 53, 415 S.E.2d 237 (1992).

• Ceres Marine Terminals v. Armstrong, 59 Va. App. 694, 722 S.E.2d 301 (2012).
• Epps v. Commonwealth, 46 Va. App. 161, 616 S.E.2d 67 (2010).
•

Fadness v. Fadness, 52 Va. App. 833, 667 S.E.2d 857 (2008).

•

Gene Forbes Enters. v. Cooper, No. 2320–14–2, 2015 WL 3549987 (Va. Ct. App. June 9,2015).

•

Green v. Va. State Bar ex rel. Seventh Dist. Comm., 274 Va. 775, 652 S.E.2d 118 (2007).

•

Kahn v. Kahn, No. 1997-13-4, 2014 WL 1830978 (Va. Ct. App. May 6, 2014).

•

Khakee v. Rodenberger, No. 1030-19-4, 2020 WL 890398 (Va. Ct. App. Feb. 25, 2020).

•

Livingston v. Va. State Bar, 286 Va. 1, 744 S.E.2d 220 (2013).

•

Mawyer v. Commonwealth, No. 1609–05–2, 2006 WL 3589070 (Va. Ct. App. Dec. 12,
2006).

•

McCallum v. Salazar, 49 Va. App. 51, 636 S.E.2d 486 (2006).

•

Prekker v. Commonwealth, 66 Va. App. 103, 782 S.E.2d 604 (2016).
20

North Carolina Cases•

Bledsoe v. Cnty. of Wilkes, 135 N.C. App. 124, 519 S.E.2d 316 (1999).

•

Capps v. NW Sign Indus. of N.C., Inc., 186 N.C. App. 616, 652 S.E.2d 372 (2007).

•

Goodson v. P.H. Glatfelter Co., 171 N.C. App. 596, 615 S.E.2d 350 (2005).

•

Kornegay v. Aspen Asset Group., LLC, No. 04 CVS 22242, 2007 WL 2570840 (N.C. Super.
Ct. Feb. 28, 2007).

•

Lopp v. Anderson, 251 N.C. App. 161, 795 S.E.2d 770 (2016).

•

N.C. State Bar v. Burford, No. COA12–909, 2013 WL 1121360 (N.C. Ct. App. Mar. 19,
2013).

•

Peek v. Wachovia Bank & Tr. Co., 242 N.C. 1, 86 S.E.2d 745 (1955).

•

Selwyn Vill. Homeowners Ass'n v. Cline & Co., 186 N.C. App. 645, 651 S.E.2d 909 (2007).

•

Smith v. TD Ameritrade, Inc., No. COA10–1221, 2011 WL 1900927 (N.C. Ct. App. May 17,2011).

•

State v. Coxton, No. COA15–575–2, 2016 WL 4091181 (N.C. Ct. App. Aug. 2, 2016).

•

State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133 (1954).

•

State v. Hill, 262 N.C. App. 113, 821 S.E.2d 631 (2018).

•

State v. McNeil, No. COA11-708, 2012 WL 1337365 (N.C. Ct. App. April 17, 2012).

•

State v. Richardson, No. COA10–1305, 2011 WL 2462718 (N.C. Ct. App. June 21, 2011).

•

State ex rel. Cooper v. Ridgeway Brands Mfg., LLC, 188 N.C. App. 302, 655 S.E.2d 446(2008).

• Steingress v. Steingress, 350 N.C. 64, 511 S.E.2d 298 (1999).
• Tabor v. Kaufman, 196 N.C. App. 745, 675 S.E.2d 701 (2009).
•

Viar v. N.C. Dep't of Transp., 359 N.C. 400, 610 S.E.2d 360 (2005).

21

Cases from Other Jurisdictions•

Allen v. G.H. Bass & Co. (In re TSC Express Co.), 176 B.R. 91 (D. Me. 1994).

•

Ad Hoc Shrimp Trade Action Comm. v. United States, 33 Ct. Int’l. Trade 1906 (2009).

•

Anderson v. Alpha Portland Indus., Inc., 836 F.2d 1512 (8th Cir. 1988).

•

Att’y Grievance Comm’n v. James, 870 A.2d 229 (Md. 2005).

•

Att’y Grievance Comm’n v. Kane, 215 A.3d 242 (Md. 2019).

•

Att’y Grievance Comm'n v. McCarthy, No. 72, Sept. Term, 2019, 2021 WL 2150202 (Md.
May 27, 2021).

•

Att’y Grievance Comm’n v. McClain, 956 A.2d 135 (Md. 2008).

•

Baldayaque v. United States, 338 F.3d 145 (2d Cir. 2003).

•

Catellier v. Depco, Inc., 696 N.E.2d 75 (Ind. Ct. App. 1998).

•

Cheverez v. Commn’r, Slip op., No. 18-CV-0711MWP, 2020 WL 561036 (W.D.N.Y. Feb. 5,2020).

•

Deede v. Deede, 2018 WY 92, 423 P.3d 940 (Wyo. 2018).

•

Disciplinary Counsel v. Burchinal, 2021-Ohio-774, ___ N.E.2d ___.

•

Ernst Haas Studio, Inc. v. Palm Press, Inc., 164 F.3d 110 (2d Cir. 1999).

•

Fleming v. Cnty. of Kane, 855 F.2d 496 (7th Cir. 1988).

•

Fletcher v. Smith, 858 F. Supp. 169 (M.D. Fla. 1994).

•

Glover v. Columbia Fort Bend Hosp., No. 06-01-00101-CV, 2002 WL 1430783 (Tex. Ct.
App. July 3, 2002).

•

Grabowski v. Arnold, No. A-5886-17T2, 2020 WL 3251168 (N.J. Super. Ct. App. Div. June
16, 2020).

•

Henderson v. State, 445 So. 2d 1364 (Miss. 1984).

•

Henning v. Kaye, 415 S.E.2d 794 (S.C. 1992).

•

Howard v. Oakland Tribune, 245 Cal. Rptr. 449 (Ct. App. 1988).

•

Idaho State Bar v. Tway, 919 P.2d 323 (Idaho 1996).
22

•Insulated Panel Co. v. Indus. Comm’n, 743 N.E.2d 1038 (Ill. App. Ct. 2001),•

In re Hogan, 490 N.E.2d 1280 (Ill. 1986).

•

In re Hogan, No. 98-RS-2552, 1999 WL 802922 (Ill. Att’y Registration & Disciplinary
Comm’n Feb. 15, 1998).

•

In re Ekekwe-Kauffman, 210 A.2d 775 (D.C. 2019).

•

In re Hawkins, 502 N.W.2d 770 (Minn. 1993).

•

In re O’Brien, 312 F.3d 1135 (9th Cir. 2002).

•

Iowa Sup. Ct. Att’y Disciplinary Bd. v. Tindal, 949 N.W.2d 637 (Iowa 2020)•

Jenkel-Davidson Optical Co. v. Roberts Instrument Co., No. 58 C 347 (3), 1961 WL 8150
(E.D. Mo. Mar. 31, 1961).

•

John v. Barron, 897 F.2d 1387 (7th Cir. 1990).

•

Ky. Bar Ass’n v. Brown, 14 S.W.3d 916 (Ky. 2000).

•

Massey v. Prince George’s Cnty., 907 F. Supp. 138 (D. Md. 1995).

•

Massey v. Prince George’s Cnty., 918 F. Supp. 905 (D. Md. 1996).

•

Matter of Disciplinary Proc. Against Davis, 2020 WI 48, 392 Wis. 2d 21, 943 N.W.2d 885.

•

Morters v. Barr, No. 01-2011, 2003 WL 115359, 2003 WI App 42 (Jan. 14, 2003).

•

Pagen Velez v. Laboy Alvarado, 145 F. Supp. 2d 146 (D.P.R. 2001).

•

Pineda v. Craven, 424 F.2d 369 (9th Cir. 1970).

•

Rowe v. Nicholson, No. 05-222, 2007 WL 1470305 (Ct. Vet. App. Apr. 26, 2007).

•

Slater v. Gallman, 339 N.E.2d 863 (N.Y. 1975).

•

Smith v. Lewis, 530 P.2d 589 (Cal. 1975).

•

Smith v. Town of Eaton, 910 F.2d 1469 (7th Cir. 1990).

•

State v. Bolton, 896 P.2d 830 (Ariz. 1995).

•

State v. Montano, 956 N.W.2d 643 (Minn. 2021).

•

TK-7 Corp. v. Estate of Barbouti, 966 F.2d 578 (10th Cir. 1992).

23

•Tarrant Cnty. Mortician Servs., 977 S.W.2d 829 (Tex. Ct. App. 1998).

•

TSC Express Co. v. G.H. Bass & Co. (In re Allen), 176 B.R. 91 (D. Me. 1994).

•

United States v. Logwood, 360 F.2d 905 (7th Cir. 1966).

•

United States v. Macedo, 406 F.3d 778 (7th Cir. 2005).

•

Vandeventer v. Wabash Nat’l Corp., 893 F. Supp. 827 (N.D. Ind. 1995).

•

Van Winkle v. Owens-Corning Fiberglas Corp., 683 N.E.2d 985 (Ill. App. Ct. 1997).

•

Varda, Inc. v. Ins. Co. of N. Am., 45 F.3d 634 (2d Cir. 1995).

•

Westinghouse Elec. Co. v. NLRB, 809 F.2d 419 (7th Cir. 1987).

Secondary Sources•

Carol Bast & Susan W. Harrell, Ethical Obligations: Performing Adequate Legal Researchand Legal Writing, 29 NOVA L. Rev. 49 (2004).

•

Margaret R. Milsky, Ethics and Legal Writing, 85 Ill. B.J. 33 (1997).

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Scott A. Moss, Bad Briefs, Bad Law, Bad Markets: Documenting the Poor Quality of
Plaintiffs’ Briefs, It’s Impact on the Law, and the Market Failure It Represents, 63 Emory
L.J. 59 (2013).

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Michael G. Walsh, The Grammatical Lawyer: The Ethics of Legal Writing (Part I), 64 Prac.
Law., June 2018, at 5.

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