10th Cir. R. 46

46.1 Entry of appearance. (A) Attorneys. Within 14 days after an appeal or other proceeding is docketed in this court, counsel for the parties must file written appearances in a form approved by the court (see 10th Cir. Form 2).

Other attorneys whose names subsequently appear on filed papers must also file written appearances. While the court requires a separate, formal entry of appearance from all attorneys in the appeal or other proceeding, counsel should also note that attorneys who authorize their names to appear on filed papers have technically entered an appearance and are therefore responsible for the contents of such papers, and also for following all court rules and requirements. Attorneys who appear in a case in this court may not withdraw absent entry of a court order allowing them to do so. (B) Pro se.

A party appearing without counsel may notify the Clerk in writing of that status by filing an entry of appearance on a form approved by the court (see 10th Cir. Form 3). (C) Change of address and obligation to keep account information current. Once an appearance has been entered, the Clerk must be notified of any subsequent change in address.

This requirement applies to changes in both street addresses and changes made to email addresses. Registered attorneys are required to keep their email addresses current and may update ECF registration with the PACER Service Center. See www.pacer.psc.uscourts.gov. 147 (D) Certification of interested parties.

(1) Certificate. Each entry of appearance must be accompanied by a certificate listing the names of all interested parties not in the caption of the notice of appeal so that the judges may evaluate possible disqualification or recusal. (2) List. The certificate must list all persons, associations, firms, partnerships, corporations, guarantors, insurers, affiliates, and other legal entities that are financially interested in the outcome of the litigation.

For corporations, see Fed. R. App. P. 26.1. (3) Generic description. An individual listing is not necessary if a large group of persons or firms can be identified by a generic description. (4) Attorneys.

Attorneys not entering an appearance in this court must be listed if they have appeared for any party in a proceeding sought to be reviewed, or in related proceedings that preceded the original action being pursued in this court. (5) No additional parties. If there are no additional parties, entities, or attorneys in any of these categories not previously reported to the court, a report to that effect also is required. (6) Obligation to amend.

The certificate must be kept current. 46.2 Admission to Tenth Circuit bar. (A) Prerequisite to practice. Upon filing a case or entering an appearance in this court, an attorney who is not admitted to the Tenth Circuit bar must apply for admission.

Forms (as well as other information) are available on the court’s website at www.ca10.uscourts.gov. (B) Method of admission and fees. Federal Rule of Appellate Procedure 46 applies to admission to the Tenth Circuit bar. The amount of the admission fee will be set by the court and is payable to the Clerk as trustee.

The admission fee is waived for any attorney representing the United States or a federal agency or for any attorney appointed by the court to represent a party on appeal. Per the court’s Plan For Attorney Disciplinary 148 Enforcement, any lawyer disbarred from practice before the Circuit will be required to pay the fee prior to being readmitted. (C) Trust account. The Clerk will hold all admission fees in a trust account known as the “Attorney Admission Fund.” The Clerk will disburse money from this account as the chief judge or a delegated judicial committee directs to defray expenses of the annual judicial conference and support other activities and purchases that will benefit the bench and the bar.

The Clerk must account to the court annually for the trust funds. (D) Required Notification of Suspension or Disbarment. An attorney admitted to practice in this court who is disbarred or suspended by the bar of a state or another court must file with the Clerk a copy of that disciplinary order within 30 days. For purposes of this rule, an attorney who resigns from the bar of a state or court while under investigation for alleged misconduct is deemed disbarred by that state or court, and the attorney's resignation, along with any acknowledgment or acceptance of that resignation by the state or court, is deemed an order of disbarment.

46.3 Responsibilities in criminal and postconviction cases. (A) Prosecution of appeal. Trial counsel must continue to represent the defendant until either the time for appeal has elapsed and no appeal has been taken or this court has relieved counsel of that duty. An attorney who files a notice of appeal in a criminal case or a postconviction proceeding under 28 U.S.C. § 2241, § 2254 or § 2255, or who has not obtained an order from the district court granting permission to withdraw from further representation prior to the filing of a pro se notice of appeal, has entered an appearance in this court and may not withdraw without the court’s permission.

Before filing a proper motion to withdraw under Rule 46.4 counsel must file, at a minimum, an entry of appearance and docketing statement. Before moving to withdraw, counsel appointed under the Criminal Justice Act must also order the transcript(s) of any change of plea, sentencing, or trial that took place in the district court. See 10th Cir.

R. 10.2.

(B) Additional motion requirement for CJA counsel. All counsel appearing in this court pursuant to a Criminal Justice Act appointment made originally in the district court must file a motion, within 14 days after the appeal or other proceeding is docketed in this court, seeking either a continued appointment for the appeal or permission to withdraw. 149 (1) All motions to withdraw must comply with Rule 46.4(A). (2) All motions to continue the appointment on appeal must include: (a) (b) a statement regarding whether the attorney is currently, or was previously, a member of the Tenth Circuit Criminal Justice Act appellate panel; and a statement regarding why the continuation is sought and the benefit to the appeal by virtue of a continued appointment.

(3) In counsel’s discretion, motions to continue may be filed ex parte and/or under seal. (4) Consistent with the provisions of Rule 46.3(A), this requirement applies equally if the defendant files a pro se notice of appeal. 46.4 Withdrawal. (A) Motion requirements.

Every motion to withdraw in a criminal appeal or in an appeal in a postconviction proceeding must include: (1) (2) the reasons for withdrawal; one of the following: (a) (b) (c) (d) a showing that new counsel has been retained or the client already has other counsel of record in the appeal; a showing that: (i) the client has been granted leave to proceed on appeal without prepayment of fees or has been found eligible for benefits under 18 U.S.C. § 3006A; and (ii) the client desires the appointment of counsel; if the client has been found ineligible for benefits under 18 U.S.C. § 3006A, a statement that counsel has advised the client to obtain other counsel promptly; if the client intends to proceed pro se: (i) a signed statement from the client demonstrating knowledge of the right to retain new counsel or apply for 150 appointment of counsel and expressly electing to appear without counsel; and (ii) a statement from counsel that he or she has advised the client of the right to representation, if any, and of any pending obligations under the Federal Rules of Appellate Procedure or this court’s local rules; or (e) a showing that exceptional circumstances prevent counsel from meeting any of the other requirements of this subsection; and (3) proof of service on the client. (B) Frivolous appeals. (1) Duty of counsel. In a direct criminal appeal, if counsel believes the appeal is wholly frivolous or believes opposition to a motion to dismiss would be wholly frivolous, counsel must file an Anders brief, request permission to withdraw, and advise the court of the defendant’s current address.

See Anders v. California, 386 U.S. 738 (1967). If the defendant is a non-English speaker, the motion to withdraw must state counsel has made “reasonable efforts to contact the defendant in person or by telephone, with the aid of an interpreter if necessary, to explain to the defendant the substance of counsel’s Anders brief, the defendant’s right to oppose it, and the likelihood that the brief could result in dismissal of the appeal.” United States v. Cervantes, 795 F.3d 1189, 1190 (10th Cir. 2015) (internal quotation and ellipses omitted). Written notice in a language understood by the defendant will also satisfy this duty.

Id. The motion required by Rule 46.3(B) is separate from any motion filed later, in connection with the filing of the Anders brief. That is, the requirement set forth in Rule 46.3(B) is distinct from any motion later filed under Anders. (2) Notice to defendant. Except as provided in (3), the Clerk will send the defendant by certified mail, return receipt requested, a copy of the Anders brief, the motion to withdraw, and a letter in the form set out in 10th Cir.

Form 4. (3) Incompetent defendant. If the defendant has been found incompetent or there is reason to believe that the defendant is incompetent, the motion to withdraw must so 151 state, and the matter will be referred to the court for appropriate action. (C) Attorney withdrawal in civil cases.

Where counsel of record for any party files a motion to withdraw after the mandate has issued, the court will treat the motion as a notice of withdrawal. This rule applies in civil cases only and does not apply in postconviction proceedings filed under 28 U.S.C. § 2254 or § 2255. 46.5 Signing briefs, motions, and other papers; representations to court; sanctions. (A) Signature.

Every brief, motion, or other paper must be signed by at least one attorney of record-or, in a pro se case, by the party personally. The paper must state the signer’s mailing address, email address, and telephone number. Unless a rule or statute provides otherwise, a paper need not be verified or accompanied by an affidavit. (B) Representations to court.

By presenting to the court-whether by signing (electronically or through an original signature), filing, submitting, or later advocating-a brief, motion, or other paper, an attorney or unrepresented party certifies that, to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) (2) the paper is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or expense in the litigation; the issues presented are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or establishing new law; and (3) the factual contentions or denials are supported in the record. (C) Sanctions. If a brief, motion, or other paper is signed in violation of this rule, the court-on its own or on a party’s motion-may impose upon the person who signed it, a represented party, or both, an appropriate sanction, including: (1) dismissal or affirmance of the appeal; (2) monetary sanctions; 152 (3) (4) initiation of disciplinary proceedings under the Plan for Attorney Disciplinary Enforcement; and an order to pay the other party or parties the amount of the reasonable expenses incurred because of the filing of the paper, including reasonable attorney’s fees. 46.6 Discipline of counsel or parties.

(A) Sanctions for increasing cost of litigation. After giving notice and an opportunity to respond, this court may impose sanctions against parties and attorneys who unreasonably increase the cost of litigation. Examples of unreasonable cost increases include, but are not limited to, putting unnecessary material in records, briefs, appendices, addenda, and other papers. (B) Court-appointed counsel.

If court-appointed counsel for an appellant fails to comply with the Federal Rules of Appellate Procedure or with these rules, the Clerk may issue an order requiring counsel to show cause why disciplinary action should not be taken. Action by the court may include monetary sanctions. (C) Inadequate representation. After giving notice, the court may take disciplinary action against attorneys for inadequate representation on appeal, which includes but is not limited to failing to follow the rules and directives of the court.

46.7 Student practice. (A) Appearance by law students. (1) Consent of party. An eligible law student may enter an appearance in the court on behalf of a party if the party has filed a statement of consent.

(2) Agreement of supervising attorney. A member of the Tenth Circuit bar must file an agreement to supervise the student. The agreement must contain: (a) a certification by the supervising attorney that the student has satisfied the requirements of Rule 46.7(C); and (b) a copy of the law school certification required by Rule 46.7(C)(3). 153 (B) Student participation.

(1) Briefs. A law student who has entered an appearance in a case under Rule 46.7(A) may appear on a brief if the supervising attorney also appears on the brief. (2) Oral argument. An eligible student may participate in oral argument if the supervising attorney is present in court.

(3) Other. The student may take part in other activities in connection with the case, subject to the direction of the supervising attorney. (C) Student eligibility. To be eligible to make an appearance under this rule, the law student must provide a letter as described in Rule 46.7(D) or otherwise document that he or she: (1) (2) (3) (4) is enrolled and in good standing in a law school accredited by the American Bar Association; or is a recent law school graduate awaiting the first bar examination after the student’s graduation or the result of that examination; has completed the equivalent of 4 semesters of legal studies; is certified to be of good character and competent legal ability, and is qualified to provide the legal representation permitted by this rule, by either the law school’s dean or a faculty member designated by the dean; and is familiar with the Federal Rules of Civil, Criminal, and Appellate Procedure, the Federal Rules of Evidence, the American Bar Association Code of Professional Responsibility, and the rules of this court.

(D) Dean’s letter. A letter from the law school’s dean or the designated faculty member describing the student’s qualifications under Rule 46.7(C) may demonstrate eligibility. (E) Supervising attorney. An attorney who supervises an eligible law student under this rule must: (1) (2) be a member in good standing of the Tenth Circuit bar; assume personal professional responsibility for the quality of the student’s work; 154 (3) (4) (5) (6) (7) guide and assist the student as necessary or appropriate under the circumstances; sign all documents filed with the court (the student may also sign documents, but the attorney’s signature is required); appear with the student in any oral presentations before the court; file a written agreement to supervise the student; and supplement any written or oral statement made by the student to this court or opposing counsel if the court so requests.

155 Fed. R. App. P. Rule 47. Local Rules by Courts of Appeals (a) Local Rules. (1) Each court of appeals acting by a majority of its judges in regular active service may, after giving appropriate public notice and opportunity for comment, make and amend rules governing its practice. A generally applicable direction to parties or lawyers regarding practice before a court must be in a local rule rather than an internal operating procedure or standing order.

A local rule must be consistent with-but not duplicative of -Acts of Congress and rules adopted under 28 U.S.C. § 2072 and must conform to any uniform numbering system prescribed by the Judicial Conference of the United States. Each circuit clerk must send the Administrative Office of the United States Courts a copy of each local rule and internal operating procedure when it is promulgated or amended. (2) A local rule imposing a requirement of form must not be enforced in a manner that causes a party to lose rights because of a nonwillful failure to comply with the requirement. (b) Procedure When There Is No Controlling Law.

A court of appeals may regulate practice in a particular case in any manner consistent with federal law, these rules, and local rules of the circuit. No sanction or other disadvantage may be imposed for noncompliance with any requirement not in federal law, federal rules, or the local circuit rules unless the alleged violator has been furnished in the particular case with actual notice of the requirement. (As amended Apr. 24, 1998, eff.

Dec. 1, 1998.)