Ethical Considerations as Trial Counsel When You Don’t Want to Take the Appeal

Imagine you see the notice come in from the court on your latest case: Defendants’ motion for summary judgment has been granted and your client’s case is dismissed with prejudice. Your client has just lost the entire case—a case that you had litigated well. After dealing with the disappointment and post-judgment motions, you really feel it would be best for you to call it quits. Maybe you feel an appeal has no merit, or just that you would not do your best work on an appellate brief. But your client wants you to pursue the appeal. Do you have a choice? Many lawyers face the difficult decision of whether to pursue an appeal for a client. Here are some ethical issues to consider when you don’t want to take the appeal:

1.Make Sure No Rule or Statute Requires You to Participate in the Appeal.

First, you should ensure that no rule or other binding law requires involvement in the appellate process as part of your representation of the client at the trial level. Many do. As a general rule, the cases that do typically involve important liberty interests where the right to an appeal is fundamental. For example, criminal defense lawyers often have a duty to perfect a defendant’s appeal before their representation terminates, even when they believe they have not agreed to represent the defendant on appeal. Respondent parent counsel in a dependency and neglect proceeding must likewise file a notice of appeal prior to terminating the representation, even if the lawyer believes the appeal is frivolous and groundless. Given how common it is for representation of certain cases to require attorneys to take on at least some aspect of the appeal, this analysis is critical.

2. Consider the Colorado Rules of Professional Conduct.

In addition to checking case-specific law, be sure to consider the several ethical rules that may also prove relevant here. For example, Colo. RPC 1.2(a) provides that a lawyer shall abide by a client’s decisions concerning the scope and objectives of representation subject to specified exceptions. Under this rule, unless the scope or objectives of the representation have previously been limited—say, by an engagement letter—a lawyer has an obligation to pursue an appeal if the client desires.

Where this obligation ends can often be unclear. For example, does the lawyer have the obligation to simply file the notice of appeal? To handle the entire appeal? That depends. But under most situations, whether the lawyer’s obligation is limited depends on the scope of the representation as reflected in the engagement letter. Check the RPC and review your engagement letter, which hopefully defines when you may withdraw.

3. If You Must Participate in the Appeal in Any Way, Be Clear about the Extent of Your Required Role.

If you are in a situation where participating in the appellate process prior to terminating the representation is required, it is also important to be clear about what exactly you must do to fulfil your obligations. More often than not, trial counsel will be obligated to file a notice of appeal, but may not be required to pursue the appeal to the finish. In these circumstances, after filing the notice of appeal, you may be able to move the court to let you withdraw and substitute appellate counsel. In addition, though you personally may have a duty to be involved in the appeal, typically nothing prevents you from bringing in appellate co-counsel to help spot issues for the notice of appeal, or assist with efficient briefing and oral argument. In fact, the Colorado ethical rules encourage associating with other lawyers to ensure competent representation of a client, and limited representation permits co-counsel arrangements for specific portions of the case. This could allow you to handle the appeal well without being overly involved.

4. End the Engagement Well.

• If you are permitted to end the representation before the appeal, or shortly after the Notice of Appeal is filed, there are several best practices you should consider to protect both yourself and your (soon-to-be-former) client’s interests:
• Inform the client you intend to take no further action and will not be representing the client in the appeal. If you don’t typically do appellate work, explain this truthfully to the client. If your engagement letter does not cover an appeal, clarify this as well. Communication is key in this step. Serious problems arise when the client is assuming you will handle the appeal.
• Identify the date by which action must be taken to preserve a right to appeal. At minimum, you should advise how long the client has in order to pursue the appeal. Calculating these deadlines can be complex at times. Calculate this time period and make sure the client understands how long it may take another lawyer to get up to speed.
• Disclaim any opinion on the merits of the appeal. Lawyer-client relationships can be created if it appears as if you are providing legal counsel to a client. If you do not plan to be involved, be clear that you are not providing any opinion on whether or not the client should appeal, and that an appellate analysis is needed.
• Offer to provide a list of potential appellate counsel. Offering to refer the client to a specialist for the appeal is a good way to maintain the relationship and provide a necessary service to a client who may not know where to start.

You can end a representation smoothly, even where the client has suffered defeat at the trial level and the next step is an appeal. By fulfilling your required duties and taking steps to ensure the client is set up for the transition, you can meet your ethical obligations while maintaining a good relationship with the client.