Appellate lawyers are rarely the first lawyer on the case. Sometimes, the trial lawyer stays on for the appeal. And sometimes the appellate lawyer was part of the trial team. But appellate lawyers are very often the lawyer who renders a second opinion. Frequently trial and appellate lawyers are consulted to render a second opinion or as a possible substitute for previous counsel. And I’ve been thinking about how to handle these things lately and wanted to share a few thoughts.

What’s the Ethical Response?

It’s perfectly okay to communicate with a person presently represented by counsel who is seeking to hire a different lawyer or who is seeking a second opinion. Comment 1 to Rule 4.2 of the Georgia Bar Rules provides as much. The rules do not “preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter.”

However, I’ve often been told that the rules of ethics are the bare minimum of what we should do. And some advice is in order about the most professional response where counsel seeks a second opinion.

Not All Clients Fit with All Lawyers

A client has the right to switch lawyers during a case. And a client’s decision to do so does not make previous counsel a bad attorney. Not all clients are for all lawyers. And some “fits” are better than others.

Think About The Big Picture

Clients come and go. But your colleagues are with you for your career. So, there are a few things to avoid. The first essential rule is that, no matter how dissatisfied the client may be with current counsel, do not speak negatively about the attorney. And I will generally require the client to inform current counsel that she intends to consult with me. Also, should I take on the case, I will never become the client’s agent to negotiate for the return of the fee from previous counsel. I tell the client that I will speak solely about the client and the matter at hand. I will refrain as much as possible from discussion about the other lawyer. And if the lawyer is someone I know and respect I make it appoint to speak positively about that lawyer. If there were ever a moment to think of the golden rule, it is where you are being brought in for a second opinion. Finally, if it is at all possible, I will work to become previous counsel’s teammate rather than the replacement. Whether a team situation is appropriate depends upon the lawyer, the client, and the dynamics of that relationship.

A Second Opinion is Not Necessarily a Substitute Opinion

While the law is malleable, I’ve reached a point in my career where I can generally know how things are likely to turn out. And generally a situation is what it is. Sometimes, I’m the fifth lawyer on the case or my opinion is being sought because the client does not like the truth as revealed by previous counsel’s research. It is important to be up front about the fact that the client may spend money on me in addition to what has previously been spent and find himself in the exact same situation. Indeed, a common refrain from clients to their retained lawyer is the following: “I could have had an appointed lawyer and gotten this result.” And the client may not be wrong. The skill, experience, workload, and reputation of the lawyer matter, but no lawyer has the power to alter reality, the laws of physics, or an armed robbery captured on video plus a Mirandized confession.

It is rare moment where the appellate lawyer is the first lawyer on the case. And if you are taking over with a new client and case, then congratulations. However, a big-picture approach will keep you away from difficult clients and help you navigate a second opinion situation with grace and professionalism.

I just read at Bitter Lawyer and The Lawyerist about a show cause order issued by the United States Supreme Court for the submission of a certiorari petition that was hard to read and which departed significantly from the Supreme Court rules. What happened? The lawyer allowed the client to draft the certiorari petition.

I don’t know the back story, but I can imagine what it is. I don’t assume the lawyer was being lazy. Rather, I imagine that the lawyer was “beaten down” and just gave up. Appellate clients can have strong opinions about what should be included in the brief, what arguments should be raised, and what facts should be emphasized. These views are often reinforced through limitless time with little else to do, the influence of fellow inmates with optimistic views of various statutes and precedent, and access to out of date legal materials. Imagine what it would be like for a conscious patient to have access to a medical library during a surgical procedure and a voice to advise on procedural components as the case unfolds. Or imagine if a passenger in row 15C of a plane had a microphone connected to the pilot’s headset. That’s what criminal appellate practice can be like.

The United States Supreme Court is clear how it should work. The lawyer makes decisions on which issues to raise on appeal, the order in which they should be raised, and even which potentially meritorious issue to leave out. The client has the right to be consulted and to have the client’s input considered. It sounds simple on paper, but it plays out in complicated ways as the appeal progresses and can be a true sense of frustration for the lawyer and likely for the client as well.

  • If the lawyer was retained, rather than appointed, the client is technically the customer. In that circumstance, it can be easy for the client to imagine the lawyer as a scribe with a law degree, whose job it is to write down, in lawyerly prose and with a lawyer’s signature the arguments the client wants to raise.
  • If the lawyer was appointed, the client and lawyer may be stuck on this boat together. The judge will be hesitant to support the client’s inclination to represent himself and will not want to appoint a different lawyer. The client will often try to bait the judge into allowing the lawyer off the case to create an appellate issue.
  • Often, it can be tempting to simply paste the client’s language into the brief as a way of buckling the pressure.

This problem is even more difficult in Georgia. The issue you opt to leave out of your brief can come back to haunt you in a habeas petition. However, if you fold in the wake of pressure to include the client’s pet issues, you are open to attack for failing to exercise professional judgment: “You listened to me. Therefore, you were ineffective.”

The lesson from the recent development in the United States Supreme Court is that you cannot abdicate your responsibility as the appellate lawyer. As tempting as it might get to say, “Okay, since you don’t like my ideas, I’ll just put your stuff in the brief.” If you do, you will be held responsible.

hourglass.JPGOne of the problems with appellate law is that clients either show up too late or early. Some clients show up too late and too early.

Too late is after the trial attorney has screwed things up, after a deadline has passed, or after the client took things into his own hands and dabbled in his appeal.

Too early, is when the conviction has just happened and the transcript is not ready yet where nobody can say exactly what the errors were, if any.

Too late and too early is after the trial lawyer screwed things up, no transcript is available yet, and the deadline to file the motion for new trial is four hours away.

Ideally, the client comes in after being convicted, with the trial transcript in hand, with a referral from an excellent trial attorney who made all the necessary objections, filed all the right motions, and received bad rulings from the trial court on every one of them. The lawyer filed a motion for new trial, the hearing on it is three months away, and the client is out on an appeal bond. Really ideally is when the trial lawyer brings me on to assist with legal issues with a mind toward making the best possible record and with a mind of handing the ball to me if the client gets convicted. The trouble is that most clients don’t want to think about dealing with a conviction until they are convicted and don’t think it will happen to them.

When people come to see me for an appeal, it is often with variations on one of two scenarios. I’ll give you the most extreme examples of each.

 

Scenario One

The husband/brother/son/nephew/friend was convicted in 1998 and is serving a life sentence. He had new counsel represent him on appeal. Counsel was unsuccessful, and the conviction was affirmed in 2001. At that point, husband/brother/son/nephew/friend was fed up with lawyers and filed a pro se federal habeas petition, which he unsuccessfully appealed to the 11th Circuit Court of Appeals. He then filed a pro se State habeas in 2003, which was denied and unsuccessfully appealed to the Supreme Court of Georgia and another pro se habeas petition in 2005, which was dismissed.  He really knows a lot about the law now after all these years. He’s drafted his third habeas, and wants me to be his co-counsel.

 

Scenario Two

The wife/sister/daughter/niece/friend was convicted 29.5  days ago. The person who comes to see me did not see the trial because the rule of sequestration was invoked, but he thinks the wife/sister/daughter/niece/fried was railroaded. They don’t understand how this could have happened. They hired the lawyer in town who worked on Uncle Jake’s will and who closed the loan on their house. After they hired him, he quit taking phone calls, and all the discussions of the case were in the hallway on the way into or out of court at arraignments and calendar calls. One day, they got a call at 10:30 on a Tuesday morning to come to court. Low and behold, the judge made them start the trial. Now, she’s got a life sentence. All the witnesses lied. The judge was really mean. So was that 24 year old prosecutor who said this was her first case after passing the bar. They are tired of getting the run around from lawyers. They heard you do appellate law. They will hire you, but they want to know right now if you can win. And they are going to watch you like a hawk because they see how lawyers can act. Oh, and they don’t have any money left because trial lawyer dude got $250,000 already for the trial. Oh, and can they sue the lawyer/judge/prosecutor/bailiff/guy at the metal detector?

 

Managing Client Expectations

Appellate courts are for the correction of error. Meaning, if the State did something wrong, the defense lawyer complained to the judge, the judge ruled against the defense lawyer on the complaint, and the mistake made a difference in the outcome, then the appellate courts are there to say that the judge ruled improperly and give you a new trial. In really limited circumstances, if the trial attorney made a specific identifiable mistake, and that mistake was something that could reasonable impacted the outcome, then the appellate courts exist to grant a new trial.

 

There are a wide range of things not included in the list in the paragraph above. Consider some of the things not included in that list. One would be something the state did wrong, where the defense attorney never complained about it, or where the defense attorney complained about it but where the judge did not make a ruling. And also excluded is a situation where the State did something wrong, the defense objected, the court made a bad ruling, but where the court determines that it did not have any impact on the verdict. Also excluded are all the general things that a client did not like about the attorney but that cannot be reduced to a concrete demonstrable mistake. Certainly excluded would be such things as whether witnesses lied or were credible.

 

Bottom Line

The bottom line is that an appellate lawyer cannot clean up the mess left behind by a bad lawyer and cannot use the appellate process to retry a case that wasn’t tried well the first time. It is even more difficult to clean up a mess created by a pro se client who has dabbled in his own appeal before an appellate lawyer gets on board.

The way Georgia judges hand out sentences under fairly draconian mandatory minimums or because they are just plain mean, clients have no choice but to appeal. And the great thing is that judges and prosecutors in Georgia make mistakes. Every 7 seconds in Georgia a trial judge commits reversible error in a criminal case (a statistic I just made up but which is probably true). Issues are often there.

However, more appellate lawyers need to make the expectations clear early on, and clients need to be able to enter the process with a realistic outlook of what an appeal involves and what lies ahead.