Effective Communication

Effective communications with the client and trial counsel

One of CCAP’s primary concerns is that there be clear communication between appointed counsel and the client. Appellate counsel must also frequently communicate with trial counsel. These two different types of communication are addressed separately below.

A. Client Communication

Effective representation of the client is a primary goal of appellate representation, made all the more difficult because communication is most often at a distance, by letter or phone contact, rather than in person. However, the client is the principal, to whom many ethical duties are owed, including the duty to inform and consult. Set forth here are ten tips to help develop a healthy and productive relationship with a client. Applying each tip in each and every case will also assist appellate counsel in discharging his or her ethical responsibility to communicate with the client.

After CCAP recommends that a specific attorney from the panel be appointed, both the attorney and the client will receive a copy of the appointment order from the court. At that time, CCAP will also provide counsel with copies of all previous correspondence CCAP has had with the client. Communicating an awareness of the prior letters prevents the client from feeling as if he or she is being shuffled from attorney to attorney.

Typically, the client is in prison and has limited access to the mail and the phone. The client therefore is largely dependent on appellate counsel to initiate communications. If communication is not prompt, the client will begin to question appellate counsel’s competence and dedication to his or her 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 and Avoid Legal Mail Pitfalls . (See Cal. Code of Reg., Title 15, § 3137, et. seq.)

In that initial letter to the client at the time of the appointment, counsel will know little about the legal issues. Nevertheless, the first communication can serve to introduce the attorney to the client and to explain the appellate process. Many clients have never previously had an appeal and have no idea of what is involved nor little understanding of how the appeal differs from the trial-court stage of the case. The first communication should therefore inform the client about the appellate process and reassure him or her that appointed counsel is in control of 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 the attorney communicates at each important step in the appeal. It is good practice for counsel to send a short letter triggered by each of the following events: when the record is received, 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.

Counsel should explain to the client exactly where the case is in the appellate process. When the opening brief is sent, counsel should explain that the opposing brief can be expected to be filed within 30 to 60 days. The important goal is to make sure the client understands that progress is being made in his or her case.

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, counsel should send the client an explanation of the effect it will have. This explanation should also indicate whether counsel will take any additional steps. If counsel determines that a petition for rehearing or for review will not be filed, counsel must inform the client of his or her right to file a petition in pro. per. and ensure that the client understands the applicable deadlines for those steps.

Most clients will ask questions. Counsel 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 his or her attorney does not care about the case or that counsel is incompetent. There are times, of course, when an attorney cannot interrupt his or her other professional commitments to answer a client inquiry in detail. Counsel can, however, at least pen a short note to the client explaining that those other commitments preclude answering the question at the moment, but that s/he will receive an answer to it as soon it is possible. Most clients understand that attorneys have many other cases and will wait patiently for their questions to be answered — but only if they know that they are not being ignored.

Other clients will pose so many inquiries that mounds of paper will start accumulating in the file. The courts expect appellate counsel to exercise some degree of client control and to respond as professionally needed. Experienced appellate attorneys balance the need to respond with the level of detail necessary.

One purpose of communicating with the client is to exchange information. Appellate counsel has information to give the client, and the client may have information to provide to appellate counsel. The client may also have questions to be answered. To carry out this exchange of information, appellate counsel should communicate in terms the client can readily understand.

Clients will vary in their abilities to give and receive information. Counsel must adjust his or her use of language accordingly. The language used to communicate with a developmentally disabled client, for example, will differ from that used to communicate with a non-disabled client. With every client, counsel should use language that is different from the technical jargon commonly used 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, counsel should define it in clear, non-technical language.

When representing a client who is deaf, hard of hearing, or speech-impaired, counsel will need to use the California Relay Service (external link) to place calls to the client. This free service provides specially-trained operators to relay telephone conversations back and forth between hearing or speech-disabled persons and those they wish to communicate with by telephone. Counsel does not need special phone equipment to place a relay call; it’s like using an interpreter.

Clients who do not speak or read the English language will require interpreters for written communication or attorney-client phone calls. In the Third and Fifth District, pre-authorization for the use of an interpreter is required before incurring the expense. Appointed counsel should become familiar with the differences between these two courts and their required preauthorization policy.

The client will probably lack the ability to assess the quality of the representation rendered. The client will therefore make that assessment based largely on the attitude counsel conveys.

In this regard, counsel should avoid being unduly pessimistic. The assessment on the merits may be that the appeal stands virtually no chance of success. However, if counsel tells the client that the appeal is a certain loser, the client may interpret that to mean that counsel will make no effort to win. On the other hand, if counsel tells the client that the issues are difficult to win, but that they are important ones that will be argued as forcefully as possible, the client will understand the weakness of his or her case while feeling secure that an effort is being made on his or her behalf. Even in a losing case, the client can get some satisfaction in having his or her 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 a Wende brief is filed, counsel should explain to the client that the stated issues have been carefully considered and researched, and a determination made that they cannot be ethically raised. Counsel should also explain that the Court of Appeal, in this situation, is constitutionally obligated to review his or her case independently for possible error, and that by filing a Wende brief, counsel is assisting the court in its independent review. Counsel should convey that subject to the ethical limits on advocacy, everything is being done to see that the client’s case is properly presented to the court.

Different courts use different Wende formats. Both the Third and the Fifth District Courts of Appeal prefer the format distributed by CCAP. The clerk may reject a format that does not include every element in the preferred format in the CCAP Wende Packet .

If some attorneys are too pessimistic, others are sometimes overly optimistic. Good cases lose every day. Counsel should avoid predicting results. In a strong case, counsel may share his or her considered professional opinion that the issues are strong ones, but counsel should also temper such enthusiasm with a dose of realism: the decision on appeal belongs to the justices alone — and they may have a different opinion.

The problem of adverse consequences from taking an appeal is a complex one, and CCAP is available to provide guidance in this area. When a possible adverse consequence is identified, the panel attorney must counsel the client with care. Only the client can make the decision to assume the risk of an adverse consequence, and it is counsel’s duty is to impart sufficient information and legal advice to enable the client to make that decision. At a minimum, appointed counsel should inform the client of the nature of any adverse consequences, assess how likely those consequences are if the appeal goes forward, and render a professional recommendation about proceeding. In short, the panel attorney should advise and counsel the client so that the client, not the attorney, makes an informed decision whether to proceed with the appeal. Counsel should also bear in mind that the Department of Corrections may discover errors and seek correction in the trial court even if the appeal is not pursued.

Conversely, only the client can make the decision to abandon the appeal in light of the adverse consequence. Once that determination is made, the client must sign a form stating the consent to abandon (see Motion Samples book).

Usually, the client is vitally interested in the appeal and wants to know what is going on. The easiest way to impart information to the client 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 or her case stands at a particular moment in time.

On the other hand, some clients will not want to receive briefs, filings, the opinion, or even the transcripts at the conclusion of the case. This is frequently true with sex offense cases where disclosure can put the client at risk in the prison population. It is a good idea to offer the client the option not to receive information about his or her case at the prison, but instead to send all communications to an outside trusted third party contact. It is advisable to get written consent from the client for this type of arrangement.

For a variety of reasons, the telephone is sometimes the client’s only reliable way of contacting appellate counsel. Accordingly, CCAP expects panel attorneys to accept a reasonable number of collect calls. The time spent communicating with the client on the telephone can be billed to the case, and the telephone charges are also a reimbursable expense. However, time spent communicating with the client that exceeds normal guidelines (3.5 hours) and which is not supported with an adequate written explanation submitted with the claim will not be compensated. For this reason, if the client is making an excessive number of calls without justification, the attorney is expected to take control of the situation. The attorney can accomplish this by explaining to the client that unless the client has specific questions which have not been previously answered, or has new information to impart, frequent and redundant phone calls will be dealt with appropriately. It is not appropriate, however, for panel attorneys to adopt a policy of refusing to accept collect phone calls from incarcerated clients generally, or from a specific client.

In most cases, appellate counsel can handle the client’s appeal without ever seeing the client in person. Sometimes, however, a visit to the client is necessitated because the client is not able, for whatever reason, to communicate effectively in writing, or by attorney-client phone call. If a visit to a client in prison is necessary, then both the Third and the Fifth District Courts of Appeal require preauthorization before incurring this expense. Contact the case assigned CCAP staff attorney to answer questions regarding the current preauthorization policy.

In drafting a preauthorization request to travel to visit a client, the application should include the basis for the request, an estimate of the expenses to be incurred, and the amount of time to be spent. The basis for the request should explain, without disclosing privileged matters, why a personal contact is necessary. For example, if the prison will not permit a privileged telephone communication, and the client is not literate, that could be a basis for a personal visit.

In addition to outlining the need for travel, the travel expenses request should also state steps have been exhausted necessitating the need for travel and an expense estimate. The expense estimate should include transportation costs, such as mileage or air fare. The time estimate should include travel time and consultation time. The most frequent reason a client-travel-expenses request is denied appears to be because either counsel has not yet exhausted other avenues of contact (such as contact with the legal affairs coordinator at the prison who will then facilitate an attorney-client privileged telephone call), or because the stated reason for the travel appears to be habeas-investigation based rather than appeal-issue based. Once counsel receives pre-authorization for expenses to travel, s/he can include the time and expenses attributable to the prison visit in the compensation claim for that case.

Too often the first time CCAP hears of a client communication problem is when CCAP receives a letter from an irate client complaining about a panel attorney. Learning of a problem after the attorney-client relationship is severely damaged puts CCAP in the role of mediator between the attorney and the client, a role CCAP does not relish. If the panel attorney lets CCAP know of a problem with a client as early as possible, the staff attorney assigned to the case can provide assistance in finding ways to ameliorate the problem while retaining the client’s trust. Panel attorneys should not hesitate to contact CCAP for help in this regard.

Advising a client to write to the court with their pro. per. issues will not resolve an issue dispute with a client. In the Third District, materials that are submitted from the appellant to the court will be rejected. Materials from the client must be adopted by appointed counsel in order to be filed. Where it appears that counsel simply forwarded the materials to the court, the court is likely to reject them. A cover letter to the clerk indicating that counsel is adopting the material will suffice. If counsel does not agree to adopt the material, then the client should be informed that it is not being forwarded for filing. If the document being submitted by the appellant is a supplemental brief following counsel’s filing of a Wende brief, then the document may be submitted directly to the Court of Appeal, or forwarded to the Court of Appeal by counsel if the client sent it to counsel instead of the court. The court will also accept pro. per. documents from the appellant that pertain to requests to discharge appointed counsel.

Sometimes a frustrated or distrusting client will write the court complaining that their appointed counsel is not “communicating” with them (or perhaps not to their level of satisfaction). The court’s response may be a directive that counsel communicate with their client and then inform the court that counsel has done so. First, you must comply with the court’s directive. Second, when responding to the court, you need reveal no more than something like: “Pursuant to this court’s directive, I have communicated with my client on November 13, 2022.” Under no circumstances is it appropriate that you disclose to the court the nature and content of that communication. All communications remain subject to attorney-client privilege, even when the court directed that a communication happen.

B. Trial Counsel Communication

Some of the same principles apply to communication with trial counsel. Though not justified, 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 overused and unfair. (People v. Eckstrom (1974) 43 Cal.App.3d 996, 1000-1001.) Appellate counsel should treat the relationship with tact and professionalism to avoid problems. (See related article: Trial and Appellate Counsel Relationship)

Appellate counsel should contact trial counsel early on and indicate an interest in hearing from him or her regarding ideas about potential issues, the possibility of a motion for bail, and/or any matters which trial counsel feels appellate counsel should know about, such as potential adverse consequences. Appellate counsel may need to rely on trial counsel for assistance in obtaining copies of released exhibits, reviewing or obtaining trial counsel’s file (external PDF), in settling the record, or acquiring information about off-the-record matters.

The Rules of Court do not require that a copy of briefs be served on trial counsel; however, serving trial counsel is sometimes appropriate where he or she needs to be made to feel like a part of the “team.” This positive approach can also make the transition back to the trial court easier in the event that relief is granted and trial counsel is required to follow through with post-reversal proceedings. This can be an integral part of appellate counsel effectively communicating with trial counsel.

Communication may also arise later about a possible claim of ineffective assistance of counsel. An inquiry into a potential IAC claim should not be the first overture in the case.

C. Compensation for Client & Trial Attorney Communication Time: Item 1 on the Claim Form

Carrying out ethical obligations to the client should not be driven by compensation considerations. Nevertheless, counsel must use his or her best judgment in determining the extent of communication that is required to fulfill this duty. As mentioned, communication in excess of 3.5 hours must be justified for it to be compensable. If the case reasonably requires more than 3.5 hours, counsel may be compensated for the excess, but only if CCAP is provided with a sufficient claim explanation demonstrating that the time was necessary, justifiable, and reasonable, drafted in such a way as to not reveal attorney-client confidences.