Some members of the Disciplinary Commission urged me to write about a topic that arises with unsettling frequency: appellate counsel’s failure to meet basic ethical duties to their clients. This arises most often with appointed counsel, usually in direct criminal appeals. However, appellate appointments in civil matters have become more commonplace as well since the Supreme Court held that Indiana law requires appointed counsel under certain circumstances in civil proceedings. Sholes v. Sholes, 760 N.E.2d 156 (Ind. 2001).
Here is an extreme example: A criminal defendant is convicted and counsel is appointed to handle the direct appeal. Months pass. The incarcerated appellant wonders what is going on—having made several unsuccessful attempts to obtain information from counsel. A visit to the prison law library reveals that the court of appeals affirmed the conviction months earlier. Understandably upset, the erstwhile appellant complains to the Disciplinary Commission.
Going By The Book
What’s a direct appeal lawyer to do? The temptation is to think that the client has little to add to the process. After all, the issues on appeal are confined to the four corners of the record. It is not helpful at this stage for the client to add new factual information. And appellate work is mostly the stuff of pure lawyering, about which lawyers know much and clients usually know little.
Even so, it is the client’s case (not to mention liberty) that is at stake, not the lawyer’s. Rule of Professional Conduct 1.2(a) tells us that the client controls outcome-oriented decisions and the lawyer controls means-oriented decisions made in consultation with the client. See also Rule of Professional Conduct 1.4(a)(2) and (b). In an appeal, the client’s decision about outcome is too obvious to belabor—get the lower court decision reversed. The means to achieving that end are not as straightforward.
Preeminent among the means-oriented decisions is issue selection. For example, in some direct criminal appeals the appellant must decide whether to argue ineffective assistance of trial counsel or defer that argument for future presentation in a post-conviction relief challenge. See Allen v. State, 749 N.E.2d 1158, 1166 (Ind. 2001) (raising ineffective assistance of counsel on direct appeal waives the issue for post-conviction relief.) And in every appeal, the appellant always faces the difficult process of striking the balance between presenting every possible argument and winnowing those issues down to the strongest ones.
Consulting the Client
If Rule 1.2(a) is to have any substance, consultation between lawyer and client is required in order to explore how the appeal will be presented. The tension between lawyer and client control over appellate issue selection has a long history. The majority, concurring and dissenting opinions in Jones v. Barnes, 463 U.S. 745 (1983) frame the debate well. We know from Jones that by selecting the issues to present on appeal, appellate counsel is not ineffective for Sixth Amendment purposes. But Jones decided a constitutional question, not a legal ethics one.
Ethics demand more. Ideally, a shared view of the issues to be presented will emerge out of meaningful consultation between lawyer and client. Failing that, counsel is left to decide between deferring to the client’s wishes versus paternalistically presenting those issues that, in the lawyer’s professional judgment, will be most effective. How counsel strikes this balance may come down more to personal philosophy of lawyering than ethical duty. But one consideration to keep in mind is that the client, whose appellate counsel has been appointed, has no meaningful alternative. Paying clients can always shop around for a lawyer willing to present the case as the client wishes, so long as it is not pursued frivolously. Indigent clients don’t have that luxury, and it only seems fair that appointed counsel will be at least as deferential to the appointed client as to the paying one.
Among the practical difficulties of implementing the consultation obligation are time and money. There is often not much time between appointment of appellate counsel and the deadline for filing an opening brief. And appointed appellate work often pays a pittance. Unless extended, an opening brief is due a mere thirty days after the transcript is complete. Appellate Rule 45(B)(1). If trial counsel is appointed to handle the appeal, perhaps she can get a jumpstart on the issues to be presented on appeal. But for newly appointed counsel with little knowledge of the case at trial, this is an extraordinary compressed time to work up the case for briefing, let alone consult with the client.
Given what is required to competently handle a direct appeal, including scouring the record for potential error, researching the legal basis for claims of error, and actually preparing the brief in proper form, some of the rates courts authorize to handle a direct appeal are scandalously low. But those are the realities appellate counsel face, and they do not excuse counsel from engaging in meaningful consultation with the client about the issues to be presented on appeal.
Communications Are Key
The opening brief should be promptly sent to the client when it is filed. The obligation to keep the client reasonably informed about the status of the case requires as much. Rule 1.4(a)(3). The same goes for the appellee’s brief—the client should receive a copy and be consulted about the appropriateness of filing a reply brief.
Surprisingly, one area where lawyers sometimes fall down on the job is in failing to tell the client the outcome of the appeal. One assumes that a lawyer would be motivated to let the client know the result if it is a successful appeal, but perhaps not so much if the conviction is affirmed. I suppose there is a tendency for the lawyer to substitute her judgment for the client’s and conclude that there is no reasonable likelihood of further relief through rehearing or transfer. And perhaps the lawyer’s assessment is objectively correct, but that does not excuse the lawyer from letting the client know the outcome.
All communications with the client should be documented in writing with a cover letter or in some other fashion. That way, if questions arise in the future, the lawyer will be well positioned to demonstrate exactly how and when the client was kept informed of the progress of the appeal.
Rehearing And Transfer
Because the next procedural steps in an appeal are time sensitive, immediate notice to the client, accompanied by the lawyer’s advice, is essential. Whether petitioning for rehearing or for transfer, the time for doing so is a mere thirty days. Appellate Rules 54(B) and 57(C). These deadlines cannot be extended.
Whether to pursue the next procedural steps in an appeal is clearly a decision about outcome that is for the client, not the lawyer, to make. Rule 1.2(a). The lawyer should give candid advice and counsel to assist the client in making this decision, but she is wrong to usurp the client’s decision by not letting the client know the outcome until it is too late.
Counsel should know the special consequences of not filing a petition for transfer when federal constitutional issues are raised on appeal. Failure to seek transfer will be taken as a failure to exhaust state remedies in any future collateral attack in federal court on the conviction and the federal court will not be able to exercise jurisdiction to review those questions. O’Sullivan v. Boerckel, 526 U.S. 838 (1999).
When Does The Relationship End?
Whether appointed counsel has an obligation to petition for rehearing or transfer can be a complicated question. Unlike most attorney-client relationships that are contractual in nature, the court appointment defines the parameters of the relationship. It is important for appointed counsel to clarify with the appointing judge the end of counsel’s authority to act under the appointment. Ambiguity in this regard can only lead to mischief.
If counsel’s appointment authority continues through all stages of appeal, including possible rehearing or transfer, the duty to advise the client of these additional steps and to act on the client’s decision is rather obvious. Rule 1.4(b). Less obvious is counsel’s responsibility to the client if the appointment terminates upon issuance of the initial decision on appeal. Does this fact alleviate all responsibility to fully and timely inform the client of other available steps in the appellate process? No. Rule 1.16(d) sets out a lawyer’s responsibilities to the client when the attorney-client relationship ends. These include giving the client reasonable notice that the lawyer’s duties to the client have ended in sufficient time to permit the client to employ other counsel (or, presumably, to act pro se), and to take other steps “to the extent reasonably practicable to protect a client’s interests.” Clearly, this entails informing the client of the outcome of the appeal well before it’s too late for the client to seek rehearing or transfer. It also requires informing the client of the next available procedural steps and the applicable time deadlines so that the client can take further action either with new counsel or as unrepresented.
This process need not be time-consuming. When appointed counsel’s authority ends after the initial appeal decision, informing the client of the outcome of the appeal, letting the client know that counsel’s appointment has ended, and advising the client of the next procedural steps will not vary much from case to case. Typically, a standard cover letter can accomplish this result and can be mailed to the client soon after counsel receives the decision from the clerk’s office.
The work of appointed appellate counsel is difficult and often thankless. Finding meritorious issues for appeal can sometimes be akin to looking for a needle in a haystack. It is disheartening to see appellate counsel do good work on their appeals only to fall short in handling the client-relations part of the case. In my view, compensation rates for appointed appellate counsel should fairly reflect the fact that part of the appeal process involves providing advice to and consultation with the client.