Must a lawyer who perfected a criminal appeal as a public defender finish prosecuting that appeal after leaving the office, even without pay?

Plain-English summary

An attorney served as public defender for about a year. While in that role he tried a felony case to a jury, lost, and perfected an appeal to the Mississippi Supreme Court. He then resigned and entered private practice. About nine months later, the Circuit judge notified him that he had to prosecute the appeal, which he understood would be at his own expense and without compensation.

The Committee acknowledged the question was largely a legal one but found ethical considerations gave guidance. It concluded that once the Circuit judge directed him to handle the appeal, the attorney had both an ethical and a legal obligation to prosecute it, with or without compensation. The opinion quoted Ethical Consideration 2-31 of the prior Code of Professional Responsibility, which provides that trial counsel for a convicted defendant should continue to represent the client through an appeal unless new counsel is substituted or withdrawal is permitted by the appropriate court.

The opinion relied on Allison v. State, 436 So. 2d 792 (Miss. 1983), where the Supreme Court held a lawyer in contempt for failing to prosecute an appeal he had perfected, emphasizing that a lawyer who perfects an appeal assumes a duty under Supreme Court Rule 40 owed both to the client and independently to the Court. Because the appropriate court had not permitted withdrawal or substitution, the Committee concluded the attorney had to prosecute the appeal.

Currency note

This opinion was rendered in 1986, before The Mississippi Bar adopted the Mississippi Rules of Professional Conduct (effective June 22, 1994, later amended February 5, 1999); it relied on the prior Code of Professional Responsibility (Ethical Consideration 2-31), with an editor's note directing readers to current Rules 1.16(c) and 6.1. The cited Supreme Court Rule 40, the underlying Code, and later opinions may since have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Mississippi Rules of Professional Conduct and Rules of Appellate Procedure before relying on any specific requirement mentioned here.

Common questions

Q: Can a lawyer stop working on an appeal after leaving a public defender job?

A: Per this opinion, no, not on his own. Once he perfected the appeal he had a duty to prosecute it unless the court permitted withdrawal or substituted new counsel.

Q: Does lack of payment excuse the duty?

A: No. The opinion concluded the attorney had to prosecute the appeal "with or without compensation," quoting the Supreme Court's view that economics rank below the lawyer's obligations to client and court.

Q: What case did the Committee rely on?

A: Allison v. State, 436 So. 2d 792 (Miss. 1983), in which the Mississippi Supreme Court held a lawyer in contempt for failing to prosecute an appeal he had perfected under Supreme Court Rule 40.

Background and rules framework

The opinion predates Mississippi's numbered Rules of Professional Conduct and rests on Ethical Consideration 2-31 of the former Code of Professional Responsibility, on Mississippi Supreme Court Rule 40 (an attorney who perfects an appeal must continue to prosecute it unless permitted to withdraw), and on Allison v. State. The page's editor's note points to current Rule 1.16 (declining or terminating representation, the analog of Model Rule 1.16) and Rule 6.1 (pro bono publico service, Model Rule 6.1) as the modern counterparts.

Citations and references

Rules of Professional Conduct:

• The opinion itself cited no numbered Rule of Professional Conduct (it predates the 1994 Mississippi Rules and relied on Ethical Consideration 2-31 of the prior Code). The page's editor's note directs readers to current Mississippi Rule 1.16(c) (declining or terminating representation) and Rule 6.1 (pro bono publico service).

Other authorities cited:

• Ethical Consideration 2-31, former Mississippi Code of Professional Responsibility.
• Mississippi Supreme Court Rule 40: duty to continue prosecuting a perfected appeal unless permitted to withdraw.

Cases:

• Allison v. State, 436 So. 2d 792 (Miss. 1983), holding a lawyer in contempt for failing to prosecute an appeal he had perfected.

See also

• MS Bar Ethics Op. 138: No Duty to Represent at Revocation
• MS Bar Ethics Op. 187: Withdraw After Bar Complaint
• MS Bar Ethics Op. 144: Termination Fees & Client Files

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/130/
• Original PDF: https://www.msbar.org/media/1426/35a_et_op_130.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ETHICS OPINION NO. 130

OF THE MISSISSIPPI BAR

RENDERED December 05, 1986

Editor's Note: Refer to Rules 1.16(c) and 6.1.

ATTORNEY'S DUTY TO PROSECUTE APPEAL - Attorney who served as public defender for approximately one year and who tried and appealed a felony case while serving as public defender must prosecute the appeal unless allowed to withdraw for bona fide reasons after application to the lower court or to the Supreme Court.

The Ethics Committee of the Mississippi State Bar has been requested to render an opinion on the following facts:

An attorney served as public defender for approximately one year and then submitted his resignation. While serving as public defender, the attorney tried a felony case to a jury and a verdict was rendered against his client. While still serving as public defender, the attorney appealed the case to the Supreme Court of the State of Mississippi. The attorney then resigned the office of public defender and became engaged in the private practice of law. Some nine months after resigning from the public defender's office, the Circuit judge notified the attorney in question that he must prosecute the appeal. It is the understanding of the attorney in question that he would have to prosecute the appeal at his own expense and without compensation.

The request for opinion really is a legal matter and not one of ethics. However, there are ethical considerations which give us some guidance in rendering an opinion. It would be the opinion of this committee that the Circuit judge notified the attorney in question that he must handle the appeal with or without compensation, the attorney had both an ethical and legal obligation to prosecute the appeal.

Although this appears to be a legal matter, ethical consideration EC 2-31 fully advises the attorney of his responsibilities. EC 2-31 reads as follows:

Full availability of legal counsel requires both that persons be able to obtain counsel and that lawyers who undertake representation complete the work involved. Trial counsel for a convicted defendant should continue to represent his client by advising whether to take an appeal and, if the appeal is prosecuted, by representing him through the appeal unless new counsel is substituted or withdrawal is permitted by the appropriate court.

Since the appropriate court has not permitted the withdrawal of the attorney in question or substitution of another attorney, the appeal must be prosecuted by the attorney in question, with or without compensation.

The Supreme Court of the State of Mississippi in Allison v. State of Mississippi, 436 So. 2d 792, (Miss. 1983), held an attorney in contempt of court for failing to prosecute an appeal which he had perfected.

The Supreme Court held the following:

. . . [T]here are obligations a lawyer may not shirk no matter how inconvenient he may find them. As much as ever, today's lawyer shoulders dual and sometimes conflicting responsibilities of fidelity and service to his clients and to the court. Lawyers differ in the ever present controversy which of these has priority over the other. One thing is certain: both outrank the lawyer's personal whim or convenience.

. . . Thereafter, Taylor acting as counsel for Allison took the necessary steps to perfect an appeal to this court. By virtue thereof, Taylor assumed the duty under Rule 40 to prosecute the appeal. We emphasize that this was not merely a duty to his client, Allison, but equally and independently a duty Taylor owed to this Court.

. . . [W]hen an individual accepts a license to practice law and becomes a member of the bar of this state and of this Court, he assumes many obligations. At least two of these have priority over his certainly legitimate prerogative to charge a legitimate fee for his services. Along with his fellow members of the bar, each lawyer assumes a duty to assume that every person in substantial need of legal service receives the service without regard to ability to pay. Beyond that, each lawyer, in conjunction with his fellow members

of the bar assume an obligation as an officer of the Court to assure that, before this Court makes the life shattering decisions tendered to it, it has the benefit of competent advocacy on behalf of both sides.

What we say here is a simple reiteration of the values and traditions of the legal profession. These premises are articulated in the ethical considerations underlying the canons of the Code of Professional Responsibility by which all lawyers are bound. There is no doubt that parts of that code relegate to third and fourth priority a consideration of the economics of the practice of law. This is merely a part of the quid pro quo the lawyer must be prepared to give when he accepts his license to practice law.

Yes, the world is much with today's lawyer. But so are the ideals and traditions of professional responsibility within the Bar, and so are the Ethical Considerations underlying our Code of Professional Responsibility, with all of which we find the lawyer's obligation under Rule 40 of the rules of this Court to be wholly consistent.

436 So. 2d pp. 794, 796. 797).

Supreme Court Rule 40 also provides as follows:

An attorney who perfects an appeal to this Court on behalf of the appellant shall continue to prosecute the appeal by filing an assignment of errors and brief when due, unless the Court permits such attorney to withdraw from the case (Rule 40, Mississippi Supreme Court Rules).

In conclusion, it appears that the ethical considerations are consistent with legal rules that once an attorney perfects an appeal he has a duty to prosecute that appeal unless given permission to withdraw by a court of competent jurisdiction.