Client 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 the appeal
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 take.
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, non-technical language.
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 client’s 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 adverse consequences
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 claim.
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 correspondence.
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 them.
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 for help.
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 translator’s 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 review.
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 doing so.
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 AG’s 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.