Who decides what issues to present on appeal? The client or the attorney? When the client and the attorney disagree regarding what arguments to present (if any) on appeal, some attorneys may be inclined to present an argument in a brief to appease a client. If you are in this situation, be very careful before you submit that appellate brief.
Appellate counsel must act as an uncompromisingly vigorous advocate. (ABA Model Rules of Prof. Conduct (ABA Model Rules), Canon 7, EC 7-1 [“the duty of a lawyer, both to his client and to the legal system, is to represent his client zealously within the bounds of the law”].)
However,counsel has a duty as an officer of the court not to pursue frivolous issues. (CA. Bus. & Prof. Code, § 6068, subd. (c); ABA Model Rules, Canon 7, DR 7-10 [in representing client, a lawyer may not “[k]nowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law”].)
Therefore, appellate counsel’s ethical and professional responsibilities require counsel to utilize his or her trained judgment to review the record, determine the strategy for the case, and select the issues to be raised on the appeal. While counsel has a duty to consult with his client, appellate counsel is not required to raise every issue suggested by the client. (Jones v. Barnes (1983) 463 U.S. 745,751.) This is because it is counsel’s duty, not the client’s, to make the ultimate decision as to which issues will be raised.(People v. Davis (1987) 189 Cal.App.3d 1177, 1188.) In fact, it is unethical for counsel to act as a mere “‘mouthpiece’ for the client, . . .” (ABA Standards for Criminal Justice (2nd ed. 1986 Supplement) Comment to Standard 4‑1.1, p. 4‑ 9.)
With these principles in mind,what happens if an attorney disregards his/her duty to the court in an effort to please the client. Since 1851, California appellate courts have been statutorily authorized to impose sanctions for the prosecution of frivolous civil appeals. (See Stats. 1850–1853, ch. 123, § 133, p. 542.) Pursuant to CA Code. Civ. Pro., § 907, if a reviewing court finds an appeal “was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just.”
An attorney who presents an argument on appeal simply to appease the client, actually provides the client a disservice. The frivilous appeal subjects the client to having to pay not only the opposing party's attorney fees and costs, but also to additional sanctions ordered by the court. In light of the financial implications to your client, as well as the ethical implications as an officer of the court, it is the appellate attorney's responsibility to carefully determine which issues, if any, to present on appeal.
I loved the type ad commenting system very clean and very efficient.
Love to read more from you on the topic above
Posted by: CZ Rings | October 26, 2009 at 11:07 PM