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.

(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

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.

(1) A ll motions to withdraw must comply with Rule 46.4(A).

(2) A ll motions to continue the appointment on appeal must

include:

(a) a statement regarding whether the attorney is

currently, or was previously, a member of the Tenth

Circuit Criminal Justice Act appellate panel; and

(b) a statement regarding why the continuation is

sought and the benefit to the appeal by virtue of a

continued appointment.

(3) I n counsel’s discretion, motions to continue may be filed ex

parte and/or under seal.

(4) C onsistent 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) the reasons for withdrawal;

(2) one of the following:

(a) a showing that new counsel has been retained or

the client already has other counsel of record in the

appeal;

(b) 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;

(c) 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;

(d) 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

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

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) the paper is not being presented for any improper purpose,

such as to harass or to cause unnecessary delay or

expense in the litigation;

(2) 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;

(3) initiation of disciplinary proceedings under the Plan for

Attorney Disciplinary Enforcement; and

(4) 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).

(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) 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;

(2) has completed the equivalent of 4 semesters of legal

studies;

(3) 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

(4) 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) be a member in good standing of the Tenth Circuit bar;

(2) assume personal professional responsibility for the quality

of the student’s work;

(3) guide and assist the student as necessary or appropriate

under the circumstances;

(4) sign all documents filed with the court (the student may

also sign documents, but the attorney’s signature is

required);

(5) appear with the student in any oral presentations before

the court;

(6) file a written agreement to supervise the student; and

(7) supplement any written or oral statement made by the

student to this court or opposing counsel if the court so

requests.