When a lawyer's own error causes a client's criminal appeal to be dismissed, what must the lawyer do to help the client, and does the lawyer's own exposure create a disqualifying conflict?

Plain-English summary

A criminal defense lawyer failed to perfect his client's appeal, and the court dismissed it. The committee was asked what advice and assistance the lawyer may, and must, give the client, ranging from telling the client about a habeas petition and its deadline to drafting a petition, supplying an affidavit, and helping find new counsel.

The opinion starts with Rule 1.4. When the dismissal results from the lawyer's failure to timely file or perfect the appeal, the lawyer has a duty to tell the client of the dismissal, the reason, and the client's recourse, including a habeas petition alleging ineffective assistance and a possible malpractice claim, even though that advice is against the lawyer's own interest. So the lawyer must at least advise the client of the right to file for habeas, the time limit, and how and where to file.

The remaining assistance once raised a conflict between the lawyer's duty to protect the client and the duty to avoid conflicts under Rule 1.7(b). The committee explains that as of July 1, 2005, Va. Code §§ 19.2-321.1 and 19.2-321.2 require the responsible attorney to prepare an affidavit certifying that the lawyer, not the client, caused the error, to accompany the client's motion for leave to pursue a delayed appeal. That statute resolves the dilemma: the lawyer no longer must choose between protecting himself and protecting the client. The committee holds that assisting with the motion does not create the impermissible conflict found in prior LEOs 1122 and 1558 (where a lawyer would have to attack his own conduct), and overrules those opinions to the extent they are inconsistent. Because the statute lays the conflict to rest, the listed assistance is not just permitted but required under the lawyer's diligence and termination duties (Rules 1.3 and 1.16(d)); the lawyer must help the client seek leave to pursue the delayed appeal, with the precise steps depending on whether the defendant is a current or former client and the time and resources available.

In practice

The opinion holds that, under the Virginia rules and Va. Code §§ 19.2-321.1 and 19.2-321.2 as of July 1, 2005, a lawyer whose error caused an appeal's dismissal must disclose the error and the client's recourse under Rule 1.4 and must assist the client in seeking a delayed appeal, including preparing the statutory responsibility affidavit. Per the opinion, the statute removes the self-protection-versus-client conflict that previously could bar such assistance under Rule 1.7(b), so the lawyer should not let conflict concerns stop him from taking the steps required by Rules 1.3 and 1.16(d).

Common questions

Q: Must a lawyer tell a client that the lawyer's own mistake caused the appeal to be dismissed?

A: Yes. The opinion states Rule 1.4 requires the lawyer to disclose the dismissal, its cause, and the client's recourse, including habeas for ineffective assistance and a possible malpractice claim, even against the lawyer's own interest.

Q: Can the lawyer help the client pursue a delayed appeal despite his own exposure?

A: Yes, and the opinion says he must. Va. Code §§ 19.2-321.1 and 19.2-321.2 require the lawyer's responsibility affidavit, which removes the conflict that prior LEOs 1122 and 1558 found, so assisting with the delayed-appeal motion is required.

Q: Does it matter whether the defendant is still a current client?

A: The opinion says the duty applies whether the defendant is a current or former client; the precise steps depend on the circumstances, including the time remaining and the defendant's resources and sophistication.

Background and rules framework

The opinion interprets Rule 1.4 (Model Rule 1.4, communication), Rule 1.7(b) (Model Rule 1.7, the conflict cure), Rule 1.3 (diligence), and Rule 1.16(d) (protecting the client on termination). It reads these against Va. Code §§ 19.2-321.1 and 19.2-321.2, the delayed-appeal statute effective July 1, 2005, which it treats as altering the conflict analysis and overruling prior LEOs 1122 and 1558 in part.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.4 / Virginia Rule 1.4 (communication; disclosing the lawyer's own error)
• Model Rule 1.7(b) / Virginia Rule 1.7(b) (conflict of interest; cure)
• Model Rule 1.3 / Virginia Rule 1.3 (diligence)
• Model Rule 1.16(d) / Virginia Rule 1.16(d) (protecting client interests on termination)

Statutes:

• Va. Code §§ 19.2-321.1, 19.2-321.2 (delayed appeal; attorney responsibility affidavit; effective July 1, 2005)

Cases:

• Tallon v. Committee on Professional Standards, 447 N.Y.S.2d 50 (1982); In re Higginson, 664 N.E.2d 732 (Ind. 1996); Olds v. Donnelly, 150 N.J. 424, 696 A.2d 633 (1997) (duty to disclose one's own error to the client)

Other opinions cited:

• Virginia LEOs 1122, 1558 (overruled in part to the extent inconsistent with the statute)

See also

• VA LEO 1823: Waiving a Jury Trial Without Consent
• VA LEO 1816: Suicidal Capital Client Refusing a Defense
• VA LEO 1854: Settlement Negotiations in a Criminal Case

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1817.pdf

Original opinion text

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

Committee Opinion
August 17, 2005
LEGAL ETHICS OPINIONS 1817

WHAT SHOULD A CRIMINAL
DEFENSE ATTORNEY DO WHEN HE IS
THE CAUSE OF A MISSED APPEAL
DATE?

You have presented a hypothetical in which an attorney represents a criminal defense
attorney whose client has been convicted of a crime and appealed the crime to the proper
court. The attorney failed to perfect the appeal properly; therefore, the court dismissed
the appeal.
With regard to that hypothetical, you have asked the committee to opine as to what
advice and/or assistance the attorney is ethically permitted to provide to the client.
Specifically, may the attorney do any or all of the following:
1) Advise the client that he may have a right to file a petition for a writ
of habeas corpus;
2) Advise the client of the time limit for filing a petition for a writ of
habeas corpus;
3) Advise the client how and where to file the petition for a writ of
habeas corpus;
4) Advise the client of possible language to include in a petition for a
writ of habeas corpus;
5) Send the client a blank form of a petition for a writ of habeas
corpus;
6) Send the client a petition for a writ of habeas corpus that the lawyer
has drafted;
7) Send the client an affidavit executed by the attorney stating the
circumstances of the client’s case and suggesting that the client might
wish to attach the affidavit to any petition for a writ of habeas corpus
the client might file;
8) Advise the client of the possible legal effect of filing a petition for a
writ of habeas corpus on other legal remedies or on his right to file
future petitions for a writ of habeas corpus; and
9) Offer to assist the client in securing a new attorney to assist the
client in pursuing legal remedies.

Committee Opinion
August 17, 2005
Conversely, you ask, would it be unethical as a dereliction of the attorney’s duty to the
client not to assist him in those ways in this situation.
The committee’s analysis of these questions begins with the lawyer’s duty to
communicate with the client under Rule 1.4 of the Virginia Rules of Professional
Conduct. Rule 1.4 requires the lawyer to keep the client reasonably informed of the
status of a matter, to explain a matter to the extent reasonably necessary to permit the
client to make informed decisions regarding the representation, and to inform the client of
facts pertinent to the matter and of communications from another party that may
significantly affect settlement or resolution of the matter.
When counsel is notified by the court of a dismissal of the client’s appeal of a criminal
conviction, and the lawyer knows or is informed that the dismissal was caused by the
lawyer’s failure to timely file or perfect the appeal, there is an ethical duty under Rule 1.4
for the lawyer to notify the client of the dismissal of the appeal, the reasons for the
dismissal and what rights or recourse the client has under those circumstances. This
would include advising the client of the right to file a petition for a writ of habeas corpus
alleging ineffective assistance of counsel; or a claim for legal malpractice based upon the
lawyer’s act or omission. If a lawyer fails to act on a client's case, the lawyer has a duty
to promptly notify the client of this failure and of the possible claim the client may thus
have against the lawyer, even if such advice is against the lawyer’s own interests. See
Tallon v. Committee on Professional Standards, 447 N.Y.S.2d 50 (1982); In re
Higginson, 664 N.E.2d 732 (Ind. 1996); Olds v. Donnelly, 150 N.J. 424, 443, 696 A.2d
633, 643 (1997). For example, a lawyer who fails to file suit within the statute of
limitations period must so inform the client, pointing out the possibility of a malpractice
suit and the resulting conflict of interest that may require the lawyer to withdraw. Rest.
(2d) of the Law Governing Lawyers § 20, cmt. (c). Even if the lawyer concludes that he
must withdraw because of the conflict of interest, the lawyer must, under Rule 1.16 (d)
take reasonable steps to protect the client’s interests. This would include informing the
client of possible actions that client might take and any deadlines within which such
actions must be taken. Thus, in regard to your first three questions, the committee
believes the lawyer has an ethical duty to:
1) Advise the client that he may have a right to file a petition for a writ of
habeas corpus;
2) Advise the client of the time limit for filing a petition for a writ of
habeas corpus; and
3) Advise the client how and where to file the petition for a writ of
habeas corpus.
The resolution of the remaining issues you present trigger a tension between two
competing and fundamental interests served in the Rules of Professional Conduct: an
attorney’s general ethical duties to protect his client’s interests versus an attorney’s
specific duty to avoid impermissible conflicts of interest. There are limits on the nature
and extent of the assistance an attorney can provide to a client whose interests may have
been prejudiced by the attorney’s own acts or omissions. An attorney cannot remain in a

Committee Opinion
August 17, 2005
representation where doing so would involve an impermissible conflict of interest.
Specifically, Rule 1.7(b), in pertinent part, prohibits the attorney from continuing with
any representation where the lawyer’s own interest may materially limit the
representation unless:
(1) the lawyer reasonably believes the representation will not be
adversely affected; and
(2) the client consents after consultation.
Until recently, this committee addressed such situations with the following inquiry:
which takes precedence for the attorney - the duty to protect his client or the duty to
avoid conflicts of interest? However, that dilemma has recently changed. As of July 1,
2005, new legislation in a sense resolves that quandary for the attorney in this context of
the missed appeal by taking the choice out of his hands. Under new Virginia Code
§§19.2-321.1 and 19.2-321.2 1, when due to an attorney’s error his client’s appeal has
never been filed or has been dismissed for failure to adhere to requisite time
requirements, that attorney must cooperate with that client by preparing an affidavit to be
filed with the client’s motion for leave to pursue a delayed appeal. That affidavit must
certify that the attorney, and not the client, is responsible for the error. Id. The
committee concludes that this requirement significantly alters the application of Rule
1.7(b) to these situations. Specifically, the attorney no longer must wrestle with
protecting himself versus protecting the client. The natural extension of this first issue,
regarding what the lawyer may do to assist his client, is the latter issue raised with your
hypothetical. Namely, while an attorney is permitted to provide the assistance of the sort
delineated in the hypothetical, is the attorney actually required to do so?
Assisting the client with the logistics of the motion to accompany the required affidavit
does not create the impermissible conflict of interest suggested in prior LEOs 1122 and
1558. 2 In LEOs 1122 and 1558, this committee addressed the potential conflict of
interest when an attorney’s own conduct becomes at issue in his client’s case. In LEO
1122, the committee concluded that generally an attorney should not represent his own
client in raising a claim of ineffective assistance of counsel as “he would have to assert a
position which would expose him to personal liability.” Similarly, in LEO 1558, the
committee concluded that an attorney could not argue on behalf of a client that the
attorney himself had improperly pressured the client into accepting a guilty plea. The
committee found that the conflict between the attorney’s need to pursue the interest of the
1

Effective July 1, 2005.
Those opinions are in line with ethics opinions in many other jurisdictions around the country finding a
conflict of interest where an attorney would need to question his own conduct to defend a client. See, e.g.,
Oregon Ethics Op. 2000-160; Pennsylvania Ethics Op. 98-42; Missouri Ethics Op. 120 (1997); Arizona
Ethics Op. 96-03; California-San Diego Ethics Op. 1995-1; Nebraska Ethics Op. 90-1; Kentucky Ethics
Op. 321 (1987). A reading of those opinions, as well as LEOs 1122 and 1558, reveals the nature of the
conflict of interest for the attorney—that he would be torn between admitting his mistakes to protect the
client and denying those mistakes to protect himself. Such a dilemma may in certain instances fail to
survive an application of Rule 1.7(b); the conflict of interest would be too substantial to cure with consent.
Virginia Code §§19.2-321.1 and 19.2-321.2 remove the present scenario from that result.
2

Committee Opinion
August 17, 2005
client yet also protect himself meant that consent could not properly “cure” the conflict of
interest. To the extent that those prior opinions are inconsistent with the assistance the
lawyer is permitted, if not required, to provide under the new statute, they are overruled.
The natural extension of this first issue, regarding what the lawyer may do to assist his
client, is the latter issue raised with your hypothetical. Namely, while an attorney is
permitted to provide the assistance of the sort delineated in the hypothetical, is the
attorney actually required to do so? The answer to this issue returns to those general
duties highlighted at the start of the opinion: the duty to diligently pursue the objectives
of the client and the duty to terminate the representation in a way that protects the client.
See Rules 1.3 and 1.16, respectively. For an attorney to decline to assist his current
client’s need to seek leave to pursue a delayed appeal would be a derogation of the
original agreement with the client to defend against the criminal charges faced by the
client. Similarly, for an attorney to withdraw from the representation leaving the client
unadvised and unassisted with respect to the need for and availability of leave to pursue
the delayed appeal, would violate that attorney’s duty under Rule 1.16(d) to take
practicable steps upon termination to protect a client’s interests. The committee opines
that as the new statute now lays to rest the conflict of interest concerns in the context of
your hypothetical, the assistance in the outlined list must be pursued by the attorney.
Whether the attorney considers the defendant a current or a former client, that attorney
must assist the defendant with his right to file for leave to pursue a delayed appeal. The
precise steps required for a particular client will depend on the particular circumstances
of that representation, such as whether the defendant is a current or former client, the
amount of time remaining available, and the resources and sophistication of the
defendant. The committee opines that the attorney in the hypothetical should not allow
concerns regarding a potential conflict of interest to interfere with taking those steps
warranted under Rule 1.3 and/or Rule 1.16 to assist this client.
This opinion is advisory only, based only on the facts you presented and not binding on
any court or tribunal.