AND TRIAL COUNSEL COMMUNICATION
A primary concern of SDAP is that there be clear and consistent
communication with the client. It is also frequently necessary
for appellate counsel to communicate with the trial attorney.
These two different types of communication are addressed separately.
We appellate lawyers need to keep in mind that our basic function
is the representation of a client. Rather than viewing the
client as a necessary evil that enables us to argue intellectually
stimulating cases, we must view the client as our principal,
to whom we have many duties, including the duty to inform
and consult. Set forth below are ten commandments, adherence
to which will keep you diligent in your responsibility to
communicate with the client.
1. Write to the client immediately upon your appointment.
When SDAP notifies the court of your appointment, the client
also receives notice. Typically, the client is in prison and
has limited access to the phone. The client therefore is largely
dependent on you to initiate communication. If you do not
communicate promptly, the client will begin to wonder about
your competence and dedication to his cause. Prompt communication
starts the attorney-client relationship on the right foot
and minimizes future problems. Mail sent to prisons, jails
or other institutions should be clearly marked as legal mail
to preserve confidentiality. (See Cal. Code of Regs, Title
15, secs. 3141 and 3143.)
Immediately upon appointment, you should contact the client.
In most cases, you will know little about the legal issues
in the case at the time of your appointment. Nevertheless,
your first communication serves to introduce yourself to the
client and explain the appellate process. Many clients have
never previously had an appeal and have no real idea of what
is involved. Your first communication should therefore inform
the client about the appellate process and reassure him that
you are in control of his appeal.
2. Write to the client at each important stage in
From the client's perspective, an appeal moves very slowly,
if at all. The client may be unable to gauge the progress
of the case unless you communicate at each important step
in the appeal. It is good practice to send at least short
letters when the record is received, when a motion to augment
or an extension of time request is filed, when the opening
brief is filed, when respondent's brief is received, when
the reply brief is filed, when oral argument is set, after
oral argument, and, of course, when an opinion is received.
It is helpful to explain to the client exactly where the case
is in the appellate process. When the opening brief is sent,
it is helpful to explain that we can expect the opposing brief
within 30 to 60 days unless the Attorney General seeks further
extensions of time. The important goal is to make sure the
client understands that progress is being made.
The most important stage of the appeal, as far as the client
is concerned, is the final decision. Along with a copy of
the decision, you should explain the effect it will have and
also inform the client of any additional steps you plan to
3. Respond promptly to the client's queries.
Most clients will ask questions. You should endeavor to answer
them as fully and as promptly as possible. When the client
asks a question that goes unanswered, the client frequently
concludes that you do not care about the case or that you
are incompetent. There are times, of course, when you cannot
interrupt your other professional commitments to answer a
client inquiry in detail. You can, however, at least pen a
short note to the client explaining that those other commitments
preclude you from answering the question at the moment but
that you will answer it as soon as you can. Most clients understand
that you have many other cases and will wait patiently for
their questions to be answered--but only if you let them know
that they are not being ignored.
4. Use appropriate language.
One purpose of communicating with the client is to exchange
information. You have information to give the client, and
the client may have information you need or may have questions
for you to answer. To carry out the exchange of information,
you need to communicate in terms the client can readily understand.
Clients will vary in their abilities to give and receive information,
and you must adjust your use of language accordingly. The
language you use to communicate with a developmentally disabled
client, for example, will differ from that used to communicate
with a non-disabled client. But remember that with every client,
you must use language that is different from the technical
jargon you use to communicate with judges and lawyers. Even
the most intelligent and educated layperson often finds legalese
nearly impossible to understand. With every client, it is
essential to use clear, non-technical language. Where a technical
term or concept must be used, you should define it in clear,
5. Convey the appropriate attitude.
Your client probably lacks the ability to assess the quality
of the representation you are rendering. The client will therefore
make that assessment based largely on the attitude you convey.
As a cardinal principle, an attorney should be honest with
his client. If an appeal is likely to lose, counsel should
not pretend otherwise. However, you want to avoid being unduly
pessimistic. Your assessment on the merits may be that the
appeal stands virtually no chance of success. If you tell
the client that you are certain the appeal is a loser, the
client will interpret that to mean that you are not trying
to win. If on the other hand you tell the client that the
issues you have raised are difficult to win, but that they
are important ones that you have argued as forcefully as possible,
the client will still understand the weakness of his case
but appreciate the effort you are making. Even in a losing
case, the client can get some satisfaction from having his
day in court with an attorney dedicated to trying to win.
An appeal lacking any reasonably arguable issues calls for
the most careful client counseling. Such an appeal should
not be treated as hopeless. The purpose of the brief required
by People v. Wende (1979) 25 Cal.3d 436 is to enable the Court
of Appeal to make an independent determination whether a reasonably
arguable issue is present. When you have to file a Wende brief,
you should explain to the client that you have researched
stated issues, carefully considered them, and determined that
you cannot ethically raise them. You should also explain that
the Court of Appeal is obligated to review the case independently
for possible error, and that by filing a Wende brief, you
are assisting the court in its independent review. What you
need to convey is that despite ethical limits on your advocacy,
you are doing everything possible to see that the clientís
case is properly presented to the court.
If some attorneys are too pessimistic, others are sometimes
overly optimistic. Avoid predicting results. In a strong case,
you should share your considered professional opinion that
the issues are strong ones, but also temper your enthusiasm
with a dose of realism: the decision on appeal belongs to
the justices alone -- and they may have a different opinion.
6. Communicate with the client regarding possible
The problem of adverse consequences is a complex one, and
SDAP is available to provide guidance in this area. When you
spot a possible adverse consequence, you need to counsel the
client with care. Only the client can make the decision to
assume the risk of an adverse consequence. Your duty is to
impart sufficient information and legal advice to enable the
client to make that decision. At a minimum, you need to inform
the client of the nature of any adverse consequences, how
likely it is that those consequences will arise if the appeal
goes forward, and your professional recommendation about proceeding.
In short, you need to advise and counsel the client so that
the client, not you, makes an informed decision whether to
proceed with the appeal.
7. Serve the client with all pleadings.
The client is vitally interested in the appeal and wants to
know what is going on. The easiest way to impart information
about the progress of the case is to routinely serve the client
with all motions, briefs, etc. Even the most unexciting pleading,
such as a motion to extend time, will let the client know
where his case presently stands.
8. Be willing to accept a reasonable number of telephone
calls, collect if necessary.
For a variety of reasons, the telephone is sometimes the client's
only reliable way of contacting you. Accordingly, SDAP expects
its panel attorneys to have a phone system that makes communication
via a collect call possible, and to accept a reasonable number
of collect calls. This expense is reimbursable on your fee
9. Be willing to visit the client, if appropriate.
In most cases, you can handle the client's appeal without
ever meeting him or her. Sometimes, however, a visit to the
client is necessary because the client is not able, for whatever
reason, to communicate effectively in writing or by telephone.
If you believe that you need to visit your client in prison,
contact SDAP. In an appropriate case, we will authorize a
prison visit. If SDAP does not preauthorize the visit, your
time and expenses may be deemed unnecessary and not be compensable.
10. Except when SDAP has a conflict of interest, email
us copies of all of your client correspondence.
The most frequent complaint clients have about their appellate
lawyers is a failure to communicate. For some time, it has
been SDAP policy that we are to receive copies of all correspondence
between panel attorneys and clients. This should be accomplished by emailing to your buddy on the case the letters from and to the client. The reason for the requirement
is that SDAP receives numerous complaints from clients.
The copies of correspondence ensure that panel attorneys are
satisfying their statutory and ethical duty of reasonable
communication with our clients. (See Bus. & Prof. Code, sec.
6068, subd. (m).)
If SDAP has a conflict of interest,
it is inappropriate for counsel to send us copies of client
Aside from the need to keep us informed, you have another
reason for sending SDAP copies of client correspondence. The
failure to send us copies can result in a delay or reduction
of your claim for compensation. In virtually every case, you
will bill time for communicating with the client. The compensation
guidelines allow between 2.5 and 3.5 hours for this purpose.
If we do not have copies of client correspondence, we may
have an inadequate basis upon which to evaluate a claim over
guidelines. When we evaluate your claim, we may therefore
ask you for the copies and hold your claim until we receive
You should also keep in mind the eleventh and greatest commandment: IF PROBLEMS ARISE WITH THE CLIENT, CONTACT SDAP. Too often the first time we hear of a problem is when we receive
a letter from an irate client complaining about an attorney.
Learning of a problem after the attorney-client relationship
is severely damaged puts SDAP in the role of mediator between
you and the client. That role is not one we relish. If you
let us know of a problem with a client as early as possible,
we can assist you in finding ways to ameliorate it and retain
the client's trust. You should not hesitate to call on us
Some of the same commandments apply to communication with
trial counsel. Many trial attorneys have the impression, reinforced
by now-retired Justice Gardner, that "appellate counsel is
blessed with the gift of hindsight as he leisurely picks over
the carcass of a dead lawsuit," and that the claim of ineffective
assistance of counsel is an untruth repeated often enough
to equate to the Big Lie. (People v. Eckstrom (1974) 43 Cal.App.3d
996, 1000-1001.) Treat the relationship with tact and professionalism
to avoid perpetuating the myth.
Contact the trial counsel early on and indicate that you are
interested in hearing from him or her with ideas about potential
issues; the possibility of a motion for release; or any matters
which trial counsel feels you should know about, i.e., potential
adverse consequences. You may need to rely on trial counsel
for assistance in obtaining copies of released exhibits, settled
statement, or information about off-the-record matters.
Communication may arise later about a possible claim of ineffective
assistance of counsel, but that should not be the first overture
in the case. The Rules of Court do not require that a copy of
briefs be served on trial counsel. However it is a professional
courtesy to do so. The small expense will reap rewards if
trial counsel can be made to feel a part of the "team." This
positive approach will also make the transition back to the
trial court easier if relief is granted and trial counsel
is required to follow through with post-reversal proceedings.
11. Representing a Non-English Speaking Client.
In a number of cases, our clients are not fluent in English.
When you represent such a client, it is your responsibility
to communicate with the client in his or her native language.
In this regard, it is necessary to have letters translated
into the client's language. Moreover, when complex matters
are to be discussed, it may be necessary to retain an interpreter
for the purpose of a client interview over the phone or in-person.
Importantly, the Sixth District has devised guidelines concerning
the reimbursement of fees paid to a translator or interpreter.
Those guidelines are as follows.
Category One: If the defendant received the services of a
court appointed interpreter or translator in the trial court,
counsel on appeal may employ an interpreter for either or
both of two purposes: (1) to translate correspondence; and/or
(2) to assist in an attorney-client interview. There is a
$250 limit on this category. Counsel need not obtain a court
order under this category. Thus, any expenditure under this
category may simply be claimed in the expenses section of
the standard claim form.
Category Two: Any use of an interpreter or translator which
does not fall within the definition of Category One. Thus,
the court's prior authorization is required in the following
situations: (1) if the defendant did not have an interpreter
or translator in the trial court; (2) if appointed counsel
wishes to expend more than $250 on interpreter's or translatorís
fees; or (3) if appointed counsel wishes to employ an interpreter
or translator for purposes other than to translate correspondence
or to assist in an interview.
In order to obtain the court's prior authorization under Category
Two, counsel must make a formal ex parte application to the
court under penalty of perjury. The application must set forth
the reasons why an interpreter or translator is required.
In addition, the application must state the exact sum requested.
If the court authorizes the expenditure of fees, the amount
expended may then be claimed in the expenses section of the
standard claim form.
12. Review of the Opinion
If you get an opinion from the Court of Appeal affirming the
judgment, the first step is to assess whether there should
be a petition for rehearing or review. It may be helpful to
consult the SDAP attorney who is assisting or monitoring the
case. Your obligation to the client is to promptly provide
him or her with the opinion and your advice about further
Assuming that you believe that further review could benefit
your client, you should go forward with a petition for rehearing
and/or petition for review. If you believe that nothing can
be gained by further review, it is your obligation to so advise
the client and promptly send the record on appeal to his or
her custody with a full explanation as to the possible methods
of obtaining further review (i.e. petitions for rehearing
and review.) In your letter to the client, you should be certain
to specify the relevant deadlines for seeking further review.
If a federal constitutional issue is presented in the case,
it is your duty to file a petition for review, or to confer
with SDAP staff regarding any case specific reasons for not
If you receive an opinion granting all or part of the relief
requested, you must also promptly notify the client. If the
relief granted is total, the only remaining significant decision
will be whether to prepare an answer to the AGís petition
for review if one is filed. If relief is partial, the client
will have to make an informed decision on whether it is prudent
to risk what has been gained by seeking greater relief by
way of petition for rehearing and review. You should analyze
the relative benefits and risks and convey them to your client.
You need an informed decision by the client before you either
risk the benefit obtained or abandon the chance for greater
benefit by failing to seek review.