Ethics Refresher – Trial Counsel’s Duties Concerning Filing Notice of Appeal

Published in the May 2013 State Bar of California Criminal Law Section E-Bulletin

Although trial counsel will not be handling any appeal, does trial counsel still have a duty to advise the client concerning an appeal? The answer to this question is a clear YES. California law as well as Supreme Court precedent provides that trial counsel’s duties do not cease upon sentencing.

Duty to Advise. California Penal Code section 1240.1, subdivision (a), instructs that in noncapital criminal, juvenile, or civil commitment case “wherein the defendant would be entitled to the appointment of counsel on appeal if indigent, it shall be the duty of the attorney who represented the person at trial to provide counsel and advice as to whether arguably meritorious grounds exist for reversal or modification of the judgment on appeal.” This duty is in line with Supreme Court precedent. In Roe v. Fores-Ortega (2000) 528 U.S. 470, the court held that counsel has a constitutionally-imposed duty to consult with a defendant about an appeal when there is reason to think either that a rational defendant would want to appeal, or that the particular defendant reasonably demonstrated to counsel that he was interested in appealing. The court writes that “Because the decision to appeal rests with the defendant . . . the better practice is for counsel routinely to consult with the defendant regarding the possibility of an appeal.” (Id. at 479.)

The American Bar Association Standards for Criminal Justice, in Standard 21-2.2, supports that trial counsel has important duties concerning the client’s right to appeal. Subdivision (a) provides that all counsel “should continue to represent a sentenced defendant until a decision has been made whether to appeal and, if an appeal is instituted, to serve the defendant at least until new counsel is substituted.” Subdivision (b) states that defense counsel should advise the client concerning “the meaning of the court’s judgment, of defendant’s right to appeal, on the possible grounds for appeal, and of the probable outcome of appealing.” Standard 4-8.2 provides that defense counsel “should give the defendant his or her professional judgment as to whether there are meritorious grounds for appeal and as to the probable results of an appeal. Defense counsel should also explain to the defendant the advantages and disadvantages of an appeal.” The decision whether to appeal must be the defendant’s own choice.”

Duty to File Notice of Appeal. California Penal Code section 1240.1, subdivision (b), states that “It shall be the duty of every attorney representing an indigent defendant in any criminal, juvenile court, or civil commitment case to execute and file on his or her client’s behalf a timely notice of appeal when the attorney is of the opinion that arguably meritorious grounds exist for a reversal or modification of the judgment or orders to be appealed from, and where, in the attorney’s judgment, it is in the defendant’s interest to pursue any relief that may be available to him or her on appeal; or when directed to do so by a defendant having a right to appeal.” Counsel should not be concerned that filing a notice of appeal for a client will obligate counsel to represent the client in the court of appeal as subdivision (b) provides that “the executing of the notice of appeal by the defendant’s attorney shall not constitute an undertaking to represent the defendant on appeal unless the undertaking is expressly stated in the notice of appeal.”

Retained counsel not only has a duty to advise the client concerning his or her appellate rights, but also has a duty, where the client wishes to appeal, to file a notice of appeal on the client’s behalf, or to assist the client in filing a notice of appeal. The Supreme Court has held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable. Roe v. Flores-Ortega, supra, 528 U.S. at 477. This holding is consistent with American Bar Association Standards for Criminal Justice, Standard 4-8.2(b) providing that “defense counsel should take whatever steps are necessary to protect the defendant’s rights of appeal.”

Conclusion. Trial counsel’s duties to the client do not end after sentencing. Counsel must discharge the duties to advise the client concerning an appeal, and to file a notice of appeal for the client. Filing a notice of appeal for the client is simple—Judicial Council forms CR-120 (Notice of Appeal-Felony) and CR-132 (Notice of Appeal-Misdemeanor)—are easy to fill out. These forms can be found at: Trial counsel should consider consulting with an appellate lawyer if there are any questions concerning advice to the client about appealing.