When a client wants to appeal but does not want the trial lawyer to handle the appeal, must the lawyer file the notice of appeal, and can a scope limitation in the retainer change that?

Plain-English summary

The inquiring attorney tries Common Pleas and General Sessions cases. Clients often say they want to appeal a verdict or ruling but do not want the trial attorney to handle the appeal, and the attorney often believes several issues exist for appellate review. The attorney asked whether he must file a notice of appeal to protect the client's ability to appeal or may instead refer the client to the South Carolina Appellate Court Rules and inform the client of the filing deadline; whether he should then petition the trial court or Court of Appeals to be relieved; and whether a limitation-of-representation provision in the retainer would change his obligation.

The committee anchored the answer in Rule 1.16(d), which requires a lawyer on termination to "take steps to the extent reasonably practicable to protect a client's interest." In a criminal matter, the attorney may be required to file a notice of appeal and related documentation regardless of limitations in the engagement letter or retainer; the South Carolina Appellate Court Rules place a duty on an attorney appointed to a criminal case to file the notice of appeal and the documents needed to establish indigent status so the client can qualify for assistance from the Office of Appellate Defense (SCACR Rule 602), and that rule also specifies when the attorney must move to be relieved. The committee noted, citing Jones v. State, that any criminal appeal would arguably be governed by similar requirements.

In the civil context the rules are less clear. A limitation on representation in the retainer is advisable but may not entirely fulfill the Rule 1.16(d) burden. Depending on the circumstances (for instance very little time remaining to file), it may be reasonably practicable to supply the client with a notice of appeal to file pro se with clear instructions for perfecting the appeal; at a minimum, a client who wants to appeal should be clearly advised of the specific time limits and the administrative requirements for perfecting the appeal, and the committee strongly suggested putting that advice in writing as soon after trial as possible. If the attorney does file the notice of appeal for the client, the attorney must then move to be relieved as counsel of record with the Court of Appeals (or the court where the notice was filed) before ceasing work on the appeal. The committee cautioned the attorney to beware of going beyond what Rule 1.16(d) requires, citing In re Tillman, which reprimanded an attorney for continuing to work on a client's file after the client terminated the representation.

In practice

The opinion holds that, under the South Carolina rule as it stood at the time, Rule 1.16(d) requires a lawyer on termination to take reasonably practicable steps to protect a client's appeal rights, and the steps depend on the type of matter. In a criminal case the lawyer may have to file the notice of appeal and indigent-status documents regardless of a retainer limitation, then move to be relieved (SCACR Rule 602). In a civil case, a retainer limitation is advisable but may not be enough; depending on timing, the lawyer should advise the client of the deadline and perfecting steps (ideally in writing) or supply a pro se notice, and if the lawyer files the notice, the lawyer must move to be relieved before stopping work. The committee also cautioned, citing In re Tillman, against doing more than Rule 1.16(d) requires.

Common questions

Q: Must a trial lawyer file the notice of appeal when the client wants to appeal but not with this lawyer?

A: In a criminal matter, the committee said the lawyer may be required to file the notice of appeal and related documents regardless of retainer limitations. In a civil matter, advising the client of the deadline and steps, or supplying a pro se notice, may satisfy Rule 1.16(d) depending on timing.

Q: Does a scope limitation in the retainer end the obligation?

A: Not necessarily. The committee said a limitation is advisable but may not entirely fulfill the lawyer's Rule 1.16(d) burden, especially in a criminal matter or when little time remains to file.

Q: If the lawyer files the notice of appeal, what then?

A: The committee said the lawyer must move to be relieved as counsel of record with the Court of Appeals (or the court where the notice was filed) before ceasing work on the appeal.

Q: Can a lawyer do more than the rule requires to help?

A: The committee cautioned against going beyond Rule 1.16(d), citing In re Tillman, which reprimanded a lawyer for continuing to work on a client's file after the client terminated the representation.

Background and rules framework

The opinion interprets South Carolina Rule 1.16(d) (on termination, taking reasonably practicable steps to protect a client's interests), which corresponds to Model Rule 1.16(d). It applies that duty against the backdrop of the South Carolina Appellate Court Rules, including SCACR Rule 602's duties for attorneys appointed in criminal cases, and notes that a retainer limitation under the scope-of-representation rules does not necessarily discharge the Rule 1.16(d) obligation.

Citations and references

Rules of Professional Conduct:

• MR 1.16 / SC Rule 1.16(d) (steps to protect a client's interests on termination)

Court Rules:

• SCACR Rule 602 (duty of an attorney appointed in a criminal case to file the notice of appeal and indigent-status documents; when to move to be relieved)

Cases:

• In re Tillman, 319 S.C. 461, 462 S.E.2d 283 (S.C. 1995), reprimand for continuing work after the client terminated the representation
• Jones v. State, 2009 (cited for when a criminal defendant has a constitutional right to advice on appeal from a negotiated plea)

See also

• SC Bar Ethics Op. 08-01: Duties Until the Court Relieves You
• SC Bar Ethics Op. 08-12: One Party Revokes, Don't File
• SC Bar Ethics Op. 06-10: GAL Blocks Discovery of Assets

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-09-04/
• Original PDF: https://www.scbar.org/media/wbdghqrg/09-04.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 09-04

SC Rules of Professional Conduct: 1.16(d)

Facts: Attorney tries Common Pleas and General Sessions cases for clients. Often, clients inform Attorney they wish to appeal verdicts and rulings, but also inform Attorney that they do not want Attorney to handle the appeal. In such circumstances, Attorney often believes that there are several issues for appellate review.

Questions

Does Attorney have an ethical obligation to file a notice of appeal for such clients in order to protect their ability to appeal, or merely refer the clients to the South Carolina Appellate Court Rules and inform them of their deadline to file a notice?

Should Attorney then petition the trial court or the Court of Appeals for an order relieving Attorney?

Would a provision limiting representation in the initial retainer agreement change Attorney’s obligation?

Summary

Rule 1.16(d) states, “Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interest . . .” In a criminal matter, Attorney may be required to file a Notice of Appeal and other documentation regardless of the limitations in the engagement letter or retainer agreement. In a civil matter, this obligation may be met by advising the client as to the steps necessary and time involved or by supplying client with a Notice of Appeal to file pro se and specific instructions for perfecting the appeal, depending upon the time of notice of the client of its desire to appeal the adverse decision. Attorney is cautioned about going beyond what is required by SCRPC Rule 1.16(d). See In Re Tillman, 319 S.C. 461, 462 S.E. 2d 283 (1995) (reprimanding attorney for continuing to work on client’s file after client terminated representation).

Opinion

Attorney is required by S.C. Rule of Professional Conduct 1.16(d) to “take steps to the extent reasonably practicable to protect a client’s interest” upon termination of representation. SCRPC Rule 1.16(d). The steps required depend greatly upon the type of law and the nature of the representation. The South Carolina Appellate Court Rules specifically place a duty upon an attorney appointed to a criminal case to file the Notice of Appeal and any and all documents necessary for the determination of indigent status to enable the client to qualify for further assistance from the Office of Appellate Defense. SCACR Rule 602. This rule also has specific instruction for when attorney is required to file to be relieved as counsel of record in this instance. SCACR Rule 602. Arguably, any criminal appeal would be governed by similar requirements. See Jones v. State, slip opinion 2009-SC-0513.330, March 18, 2009 (reciting when the criminal defendant has a constitutional right to advice on appeal from a negotiated plea).

The rules in general do not make this answer as clear in the civil context. While a limitation on representation in the engagement letter or retainer agreement is advisable, this may also not entirely fulfill the Attorney’s burden under SC RPC Rule 1.16(d). Dependent upon the circumstances (such as very little time remaining to file) it may be reasonably practicable to supply the client with a Notice of Appeal to file pro se, along with clear instructions for perfecting the appeal. At the very least, the client desirous of appealing a negative ruling should be clearly advised on the specific time limits for filing appeal and the administrative requirements for perfecting the appeal. The Committee strongly suggests that this advice be reduced to writing as soon after the end of the trial as possible. In the event Attorney chooses to file the Notice of Appeal on client’s behalf, Attorney would then be required to file a motion to be relieved as counsel of record with the Court of Appeals, or the court where the Notice of Appeal was filed, prior to ceasing to work on the client’s appeal. Attorney is similarly cautioned to beware of going beyond what is required by SCRPC Rule 1.16(d). See In Re Tillman, 319 S.C. 461, 462 S.E. 2d 283 (1995) (reprimanding attorney for continuing to work on client’s file after client terminated representation).