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A lawyer's duty

Timothy Thomas shot his wife in the back of the head while they were sitting in a car.  His first break came when she lived.  His second was a plea bargain to attempted murder with a one-year gun spec.  His third was that the judge only gave him six years.

He tried for a fourth.  After he lost his appeal, which was centered around the argument that his plea wasn't voluntary, he filed a motion under AppR 26(B), which allows the court to reopen an appeal if the appellate attorney was ineffective. 

According to Thomas, at least, he seems to have been cursed with attorneys striving to attain simple mediocrity.  He argues first that his appellate attorney was ineffective for not raising the ineffectiveness of his trial counsel, the latter having failed him by not enforcing a plea bargain which would've gotten him four years instead of six.  In State v. Thomas, that goes nowhere, since the "four-year agreement" seems to exist only in Thomas' imagination, and there's more reliable evidence - like, oh, what was actually said in court - to contradict it.

But Thomas also complained that his appellate lawyer was ineffective for "not consulting with Thomas and arguing his desired assignments of error."  To which the court replies,

Appellate counsel has no duty to contact the appellant, and not contacting the appellant is not ineffective assistance of appellate counsel.


The first part of that sentence, at least, is obviously wrong.  Rule 1.4 of the Professional Rules of Conduct mandates that the lawyer consult with the client, comply with requests for information, and keep the client informed about the status of the case.

But while the language in Thomas is unnecessarily overbroad, it does bring up a good point:  what exactly is the duty of an appellate lawyer to his client as far as communication is concerned?

First, the basics.  The client gets a copy of everything that's filed, including the State's brief. 

Beyond that, though, what's your obligation to keep the client informed about what's going on?  It's a good idea to send out an explanatory letter, just giving the client an idea about the basic timing of an appeal, and telling him once you get the transcript and the record and go through that, you'll talk to him about what you think of the case.  That'll cut off a lot of the questions for later. 

Keep in mind that the rule requires reasonable efforts by the attorney and reasonable requests for information.  One thing I learned early on about appellate work is that people in prison have lots of time on their hands, and can think of few ways better to spend it than writing letters to their lawyer.  You have no obligation to respond to every communication you get from a client.  Depends on what it is.

The trickiest part is the argument that Thomas raises, that his lawyer didn't argue what he wanted her to.  There's a split in authority on this.  One camp argues that the lawyer should include any non-frivolous argument that the client wants included; after all, it's the client's case. 

I'm not keen on that idea, because it veers too close to the "kitchen sink" theory of appeals:  you make every possible claim, as long as it's not completely frivolous.  From judges I've talked to, that's not effective; your good arguments can be buried under the weight of the bullshit ones, and it diminishes your credibility with the panel.  I don't include an argument just because it's non-frivolous, so why would I include it just because my client insists on it? 

This leads to another point:  handling an appeal is fundamentally different from handling other cases.  In a criminal case, for example, the client gets to decide certain things:  whether to plead, whether to testify, whether to waive a jury.  And because he's eventually going to have to make those decisions, he has to be involved in the case.  In an appeal, there are no issues that the client gets to decide. 

That doesn't mean the client can, or should be, ignored.  It does mean that Thomas' second contention, that his attorney failed to press the arguments he wanted, is never going to serve as the basis for a claim of ineffective assistance of appellate counsel.  If the attorney did indeed miss an issue, then that's the basis for a 26(B); if the issues the client wanted raised wouldn't have changed the outcome of the appeal, then it doesn't matter that the attorney didn't press those issues.

But what about the second clause in the quotation above, that failure to contact isn't ineffective assistance of counsel?  You can certainly make the case that failure to contact is not per se ineffective assistance, although that might even be a stretch; last year, in Gunner v. Welch (discussed here), the 6th Circuit held that an appellate lawyer had rendered ineffective assistance by not informing his client of the availability of post-conviction relief.  And what if the lawyer fails to inform the client of the court of appeals' decision?  I think that certainly provides an argument that failing to file a motion to reopen outside the 90-day timeline can be excused, and provides good cause for a delayed appeal to the Supreme Court as well.

One of the reasons appellate work is fundamentally different from other types of cases is that you really don't have to have much, if any, communication with your client.  It's not like he's going to call you or show up at your office.  But he is your client, and he does deserve at a minimum to be kept abreast of what's going on in his case.  The 8th District may say that you don't have a duty to communicate with him, but the disciplinary rules and simple good practice dictates that you do.


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