Rule change forces attorneys to continue representing their client through the appeal process.

I was privately retained in a criminal case and tried it and was unsuccessful. The client did not hire me for the appeal. The client has not yet retained new counsel and filed a pro se appeal. Do I have any further obligations?

Samuel C. Stretton.

Unfortunately, yes, by the new rules adopted by the Appellate Court Procedural Rules Committee of Pennsylvania. These new rules, which go into effect on May 1, 2020, change the Pennsylvania Rules of Appellate Procedure.

The most shocking rule expands the duty of counsel of record.

"All attorneys who are counsel of record in the trial court at the time of filing the notice of appeal will be counsel of record in the appellate courts. For a criminal defendant, the representation extends up to and including the filing of a petition for allowance of appeal and the handling of such appeal if granted, unless substitute counsel has entered their appearance and is expressly identified in the praecipe as a substitute rather than additional counsel; and the Common Pleas Court has entered on the docket and order permitting counsel to withdraw; or an application to withdraw is granted by the appellate court."

These new rules reference the fact that court-appointed counsel is required to file appeals up through the Pennsylvania Supreme Court for a defendant. Now, these court rule changes require counsel in criminal and juvenile matters counsel to continue representation. If counsel enters an appearance on behalf of a juvenile, they can no longer withdraw by praecipe. To withdraw, the lawyer must seek court permission. The new rules end the practice of withdrawing by praecipe not only in juvenile matters, but also in dependency cases. A criminal defense lawyer is similarly still counsel of record unless given permission to withdraw by the court even if the client did not pay them for the appeal.

These new rules are somewhat disturbing since the court is essentially using the criminal defense bar to maintain an orderly criminal and appellate practice in the court system. The Appellate Rules Committee ought to know better.

Traditionally and by rule, if an attorney was court-appointed in a criminal case and the rules required the attorney to represent the client from the preliminary hearing through the petition for allowance of appeal or briefs to the Pennsylvania Supreme Court. That requirement is part of the court appointment contract. The rules also required court-appointed counsel to continue.

But in a private case, the relationship with a client is different. If someone is representing a private criminal defendant, they work out a fee arrangement. There is a contract. The contract or fee letter defines the scope of the representation and what the attorney is going to do. (See Rules of Professional Conduct, Rule 1.2 and 1.5(b)).

Many criminal trial lawyers don't like doing appeals. There are some that do. But many do not. It's not their expertise nor do they have the time to prepare and handle appeals.

But whether one does appeals or not, if one works a fee agreement, that agreement defines what one is going to do for the fee. Normally it's to represent someone at trial. Usually there is then a separate fee for sentencing, post-trial motions and then appeals. That is negotiated separately and after trial.

Many lawyers will handle the criminal case through sentencing. That is the essence of the fee agreement. It does not include appeals.

Under these new rules, what is a criminal defense lawyer to do? Does the criminal defense lawyer now have to get a fee for appeals to Superior Court and petitions or appeals to the Supreme Court? Appeals are very expensive. If done right, the appellate fee is usually far more than the cost of trying a case. The problem is that if one charges not only for a trial, but also is demanding money in escrow to handle all the appeals, they are not going to have any clients. Most people pay the lawyer for trial (in this day and age, it's usually a payment plan, unfortunately), but no one is going to have the money to pay the lawyer to have the funds in reserve to handle the appeals.

The rule now says the lawyer who is privately retained has to continue on the appeals. For instance, the way the rules are written, if the lawyer is done but then the client files a pro se appeal, then the prior lawyer who handled the case is now back as the appellate lawyer. One of the chilling aspects of the rule is the sentence added as the end.

"Counsel for parties entitled to representation on an appeal that are cautioned that if any critical filings in the appellate process are admitted because of omission by counsel, and if the party ordinarily would lose appellate rights because of that omission, counsel may be subject to discipline."

In other words, if the client doesn't pay you but you are still entered of record or he files a pro se appeal and the lawyer doesn't file post-trial motions even though that was not part of the contract, now the lawyer can be subject to discipline, and is being sent over to the Office of Disciplinary Counsel. That is not a fair and right way for the Pennsylvania appellate courts to treat lawyers. Why should a lawyer be forced to continue if the fee agreement is specific that representation is only for trial? Further, most clients do not have the funds to pay for an appeal.

Perhaps many judges have been on the bench too long or perhaps the rules committee has too many big firm lawyers. There is also a recession out there and it's greatly affecting private criminal defense lawyers, at least those who do the street crimes. Many lawyers are not getting the same number of calls, clients are not available, the clients don't have the fees and it's a very, very difficult time for small criminal defense firms to make a living.

Yet the new rules that have been adopted by the Pennsylvania Supreme Court require all criminal defense lawyers, dependency lawyers and juvenile lawyers to handle representation of a client up through the time of appeal unless they are allowed out by a judge, the appellate court or new counsel steps in. Although perhaps the rules committee doesn't understand this and maybe the appellate judges don't, many counties, particularly some of the smaller counties, don't let lawyers out easily after the trial. One files a motion to withdraw, one shows the fee agreement saying you only agreed to represent for trial, but still judges are reluctant to let lawyers withdraw, particularly lawyers from out of the county.

There is absolutely no reason to place the burden on individual criminal defense lawyers to carry the system forward. This appears to be an effort to reduce fees for indigent defense. The present county-funded court-appointed systems in Pennsylvania are a disgrace due to the lack of adequate funds. Now the private bar is being forced to carry this burden.  If there was an absolute guarantee that the court would let the lawyer out that might be different, but there is no such guarantee and the practice has sometimes been very different. With this new rule, many judges will feel they can keep private counsel in. This is going to create problems down the line and it's not fair to put that kind of pressure on the private bar.

So, in other words, this rule is badly conceived and badly written and should be reconsidered. Now in Pennsylvania, if one enters their appearance on a criminal case, unless some judge lets you out later, that lawyer is in from the beginning. It doesn't take long for sophisticated criminal defendants to figure that out. Further to show the mean-spiritedness of the appellate rules committee, they now state you are going to be subject to professional discipline if you do not comply with his unfair rule.

It's very upsetting for a judiciary such as the Pennsylvania Supreme Court to adopt such a harsh and unfair rule. It's almost as if courts are saying once you enter your appearance, you are a slave now and you must continue. There's no other employment in the world where the contractually agreed-to representation is now overridden requiring the lawyer to spend double or triple the time and effort without compensation because of this rule change. It's not fair and it's not right and it creates very unethical situations.

The days of all the lawyers being rich and the court system relying on them to do everything are gone. The bar is suffering financially. Maybe these major firms are making fortunes, but that is not the situation on the street. Yet the courts keep throwing more and more burdens on the small private criminal defense bar and these burdens just aren't going to be able to be met anymore.

But every lawyer should be aware of this rule change that takes effect in May. The only way to deal with it is to write very crisp and firm fee agreements. The lawyer then immediately once they have completed the task must file a petition to withdraw and get permission to withdraw forthwith. Otherwise lawyers are going to be burdened with notes of testimony costs, appellate costs, etc., and representation that the lawyer will have to do uncompensated. If this is the best that the Pennsylvania Appellate Rules Committee can do, perhaps it's time to revamp the membership and get membership who understand the realities of practicing private criminal law.

Technology is keeping law from its core purpose of doing justice and helping people.

I saw an article in the American Bar Association's Journal recently about big changes in technology and how law firms must keep up. There were discussions about major firms expanded use of technology and how technology helps clients manage their lawyers. Is this the future of the practice of law? 

Hopefully that is not the future of the practice of law. Everyone is now so enamored with technology and saving money as seen by the major law firms investing in serious technological advances. There are now pushes to allow private nonlawyer investors in law firms to invest in the technology, major clients now want the technology to micromanage their lawyers, and there is a great deal of outsourcing of basic legal services and also financial services to nonlawyers many times in different states due to technology, sometimes for the sole purpose of paying cheaper fees than perhaps a big city accounting firm or technology firm might charge.

What does this all mean? It is already unethical to text and email because most lawyers don't have the proper encryption to be able to protect confidence and secrets. Like doctors, lawyers aren't supposed to text and email with clients, but still everyone does it. Even Disciplinary Counsel emails. What will it mean to have a client micromanaging everything the lawyer is doing? What does it mean if artificial intelligence is becoming an accepted part of the practice of law? What does it mean when outsiders are performing work for law firms through technology, clearly sometimes with conflict of interest issues still not resolved?

In the practice of law, everything doesn't have to be done as of yesterday. All this emphasis on speed and technology really doesn't necessarily benefit the practice of law. The practice of law and adjudicating cases is a slow deliberate process. There's a great human side to it. Good lawyers get involved. There are negotiations. There are discussions. There is a very human aspect to practicing between the lawyers and their clients. There is also a human aspect with the lawyer and the lawyer's staff (assuming they exist anymore and it's not just some computer piece of artificial intelligence) and the clients.

Law is a very human-oriented business. It's a service business helping people obtain justice and fairness.

All this modern technology does not reduce the cost of practicing law. In fact, the cost because of technology is rising immensely. Hourly rates are going through the ceiling. The overhead of many of the firms is more, not less due to technology. There is less human contact. People don't talk anymore; they just email or text. Technology skills become more important than understanding the law, understanding how to deal with human beings, and having the ability to try cases and present effective argument to juries or judges.

Sometimes in the rush to save money and to stay current with the advances in technology, one has to step back and say, "What does it really mean to be a lawyer and what does being a lawyer stand for?" What does it mean to be a judge and to justice?

Clearly, at least in this writer's mind, technology causes very little contact with clients in-person and that is not what it means to be a lawyer. That's about as far as it can be from being a lawyer. There has to be a sense of humanity, empathy, and time spent with clients. Clients have to understand the role of a lawyer in this very human service business of practicing law. This is what is lost in this binge of technology.

Further, all this technology takes away the humanity, the collegiality, the history and the stories. Law without history, without collegiality, is not something one wants to do. Justice isn't by the numbers. Justice isn't by computers.

Technology is keeping law from its core purpose of doing justice, helping people and acting with a sense of humanity. Of all the professions, law is the most human one. Law requires not technology, but human contact and human ingenuity and advocacy skills to help. Without that, who would want to be a lawyer? And without that those who still want to be a lawyer are no longer going to fill the mission of the profession and its historical role.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.