Deciding whether to engage appellate counsel for an appeal can be a difficult decision, and sometimes the pros and cons are just about equal. A middle ground may edge out both options: co-counsel representation. Consider engaging an appellate specialist as co-counsel. In this scenario, trial counsel can stay involved in the appeal, manage the relationship with the client, and provide valuable insight about the case. Appellate counsel can provide efficiency through her knowledge of appellate procedure, briefing skills, and argument. The appeal can be a team effort, and can create the benefits of a large-firm team in a small-firm world.
There are several ways such an arrangement can be ethically structured. One way to engage appellate counsel is to use them for the analysis stage. Appellate attorneys can be engaged to perform a legal analysis of the potential appeal, providing potential issues, information on the next steps, or even a notice of appeal. They can give an estimate of the chances of prevailing on appeal. Trial counsel can take this information and make an informed decision with their client about whether to pursue the appeal. This analysis can also help determine whether trial counsel can handle the case going forward. This step is important in any appeal, and having a specialist’s eye can add a significant advantage. If the issues are less complex or are quite clear, trial counsel may initiate the case before the appellate court, and engage appellate counsel for assistance with briefing and oral argument. In this scenario, trial counsel files the notice of appeal and designates the record, and appellate counsel might write the opening brief and argue the case before the panel.1
Finally, attorneys can decide to engage in a true co-counsel relationship. This structure may have the most benefit, because it allows the attorneys to work collaboratively, each bringing their respective “pros” to the table. Trial counsel provides expertise on the facts, points appellate counsel to the pertinent portions of the record, shares research that was previously done, and gives an overview of what happened below. Trial counsel maintains the established relationship with the client. Appellate counsel structures that information into issues on appeal, ensures compliance with the procedural components, does the legal research, and efficiently writes the briefs. Trial counsel and appellate counsel edit the briefs together, bringing their respective insights to the drafts. The relationship can be structured in a way where the attorneys can each provide the legal services they are most competent at providing. Often, this ends up saving the client time and money in the end.
By focusing the representation this way, briefing can be done more efficiently, issues raised effectively, and ultimately, the client’s best interests are served.
In any of these arrangements, there are several ways to structure the engagement and payment. The engagement could be directly with the client, with its own retainer. It should state clearly what services appellate counsel will provide, as opposed to trial counsel. Another alternative, and perhaps more likely, is that appellate counsel would be hired by trial counsel’s firm. That allows appellate counsel to work at trial counsel’s direction. A caution in this arrangement is that then trial counsel becomes financially responsible for appellate counsel’s bills, whether or not trial counsel gets paid. One way to avoid problems is for appellate counsel to request a large retainer and bill very regularly. Another option may be for the engagement to limit trial counsel’s liability to a particular dollar amount, in the case of the client’s failure to pay. A final option is to have the appellate counsel hired by trial counsel, but for the client to take third-party responsibility and have bills submitted directly to the client. Structure the arrangement carefully, because appellate counsel will often not have a direct relationship with the client.
1Note that entering limited appearances in appellate cases is limited by C.A.R. 5.
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