Ethics in Brief: The Trial Lawyer’s Ethical Obligations for the Client’s Appeal
By: Brian P. Worthington
Most trial lawyers are uncomfortable handling appeals. It’s understandable – the procedures are foreign to most trial lawyers, as is the concept of the standards of review. As a result, many lawyers representing a client in the trial court will include a provision in their representation agreement that they will not represent the client in any appeal.
Even with such a provision, however, trial lawyers may have at least some ethical responsibilities to their clients as a client’s appeal commences. For the very reason that trial lawyers are unfamiliar with appellate processes, trial lawyers often do not realize those ethical responsibilities exist, much less what those responsibilities are.
The lawyer’s ethical responsibilities stem from the rule that, once a lawyer is counsel of record for a client in the trial court, the lawyer cannot refuse to represent the client in the trial court without either a signed substitution of attorney from the client or a court order authorizing withdrawal. And, while counsel of record in the trial court, the lawyer must take all necessary actions to protect the client’s rights, and cannot act, or fail to act, in a manner that will prejudice the client. Lawyers generally know that rule.
What most trial lawyers do not know is that a notice of appeal is filed in the trial court as part of that action, and not in the court of appeal. Thus, if a client wishes to appeal, until and unless relieved as counsel of record, the trial lawyer has an ethical responsibility to file the notice of appeal on the client’s behalf in the trial court. If the lawyer refuses to do so based on the provision in the representation agreement, the lawyer will nevertheless violate the ethical rule requiring all representation in the trial court necessary to protect the client’s interests.
There is one critical and practical reason why the trial lawyer has this responsibility. In the modern era of e-filing, the trial courts will not generally permit a represented party to file any pleadings. Another lawyer, who is not counsel of record and who may be the client’s appellate attorney, also cannot file any pleadings in the trial court without substituting or associating into the case. By refusing to file a notice of appeal for clients, the lawyer might not only violate the ethical obligation to protect the clients’ interests, but might actually prevent the clients from filing a notice of appeal on their own or through appellate counsel.
The filing of a notice of appeal is jurisdictional, meaning if it is filed late, there is no relief for the client, even for good cause and even with an attorney declaration of fault. This is why it is so critical to be aware of the obligation to file a notice of appeal on the client’s behalf. Doing so does not obligate the lawyer to represent the client in the appeal, where contractually there is no agreement to do so.
There is one other aspect of an appeal where the trial lawyer may have an ethical responsibility. At the time the notice of appeal is filed, or shortly thereafter, depending on the type of appeal, the client must file a notice designating the record on appeal. Again, though, this document is filed in the trial court, not the court of appeal. The trial lawyer may therefore also have an obligation to assist clients with this, as the clients, while represented, cannot file the notice themselves.
There are many resources from which the trial lawyer can determine the deadline for filing a notice of appeal. (The timing of that deadline can vary depending on the type of appeal and whether the case in the trial court is limited or unlimited jurisdiction.) It is therefore advisable, if the client is contemplating an appeal, not only to advise or at least remind the client that the lawyer will not represent the client on appeal, but to learn the deadlines, advise the client to seek representation for the appeal, and then, if necessary, file the notice of appeal and notice designating the record. In state court, there are Judicial Council Forms for both these notices, and they are not difficult to complete.
Knowing that these are documents filed in the trial court, and thus part of the trial court’s ethical obligations, will not only help protect the client, but avoid ethical entanglements.
