We’re All Contract Appellate Lawyers

Originally published by D. Todd Smith.

Every so often, I hear about someone looking for a “contract appellate lawyer” to help with a particular case. Most of these inquiries are from other attorneys, but they sometimes come directly from the person in need of legal services.

A contract is fundamental to the relationships that provide business to appellate lawyers. In that sense, we’re all engaged on a contract basis. So, I’m left to wonder, what does the phrase “contract appellate lawyer” really mean? Let’s consider some possibilities.

Appellate Lawyer as Subcontractor

A trial lawyer’s agreement with what I call the “end client” often allows the lawyer to hire additional counsel to assist with that client’s case, subject to ethics rules. This permits the trial lawyer to bring a specialist on board when needed and therefore serve the client better. Under these circumstances, appellate counsel’s role can take any number of forms: from behind-the-scenes litigation support to co-counsel in the trial court to lead counsel on appeal.

This might be the kind of relationship trial counsel seeks when looking for a “contract appellate lawyer.” At some level, though, the description implies that the trial lawyer wants someone else to handle the heavy lifting—such as reviewing a record, researching, and drafting a brief—while maintaining total control over the case and a tight reign on costs.

Appellate Lawyer as Unbundled Legal Service Provider

The end client may wish to hire an appellate lawyer directly rather than through trial counsel. This comes up most often when the attorney-client relationship has ended, whatever the circumstances. In this situation, if the client wishes to engage someone to handle an appeal, the “contract” in “contract appellate lawyer” is superfluous.

In some instances, however, the client may want appellate counsel to work with the trial team by performing discrete tasks, such as reviewing and commenting on draft briefs or by helping another lawyer prepare for oral argument. As another possibility, an appellate lawyer who practices frequently in a particular court may add value as local counsel—a role my firm fills with increasing frequency in cases pending before the Third and Thirteenth Courts of Appeals.

Appellate Lawyer as Ghost Writer

Either trial counsel or the end client might simply be looking for a ghost writer—someone to prepare legal documents, without entering an appearance as counsel of record, in exchange for a fee. Coming from a trial lawyer, this is a variation of the subcontracting relationship described above. Different issues arise when the request comes from an end client who wants to proceed pro se and thus seeks a kind of unbundled legal service.

In 2007, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 07-446, which blessed the practice of “ghostwriting” written court submissions for pro se litigants without disclosure. Texas has not yet followed suit, either by rule or ethics opinion, leaving practitioners in the dark as to whether ghostwriting is ethically permissible.

Behind-the-scenes work has its place. For example, the matter may be highly charged from a publicity perspective, or there may be reasons to avoid adding another name to the list of lawyers representing a party. But after spending years honing advocacy skills and building up a solid reputation among other lawyers and judges, most appellate lawyers wouldn’t want to remaining faceless throughout a project. Locking appellate counsel away to churn out work is not our highest and best use. Usually, the end client will benefit more when we are brought out into the open.

Image courtesy of Flickr by bruno.

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