Must a Washington lawyer let an incarcerated appellate client review the appellate brief before it is filed?

Plain-English summary

The inquiring lawyer represented incarcerated criminal defendants in appeals and asked about the practice of denying a client's request to review his or her appellate brief before it was filed. The committee concluded that this practice conflicts with RPC 1.2(a), 1.3, 1.4(a), and 6.2.

The committee said the attorney should request a continuance of the filing date from the court so the client can review the brief. If the motion for a continuance is denied, the attorney may file the brief without prior client review under RPC 3.4(c). The committee added that if the difficulty in complying with RPC 1.2, 1.3, and 1.4 is the volume of cases the attorney accepts, then such cases should be declined; due diligence under RPC 1.2 requires that the client be shown the brief if the client requests it, and if the attorney cannot comply, the attorney should not take the case.

Currency note

This opinion was issued in 1997, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here. Washington's cited rules correspond to ABA Model Rules 1.2 (scope of representation), 1.3 (diligence), 1.4 (communication), 3.4 (fairness to opposing party and counsel), and 6.2 (accepting appointments).

Common questions

Q: Can a lawyer file an appellate brief without showing it to the client first?

A: Not when the client has asked to review it. The committee concluded that denying such a request conflicts with RPC 1.2(a), 1.3, 1.4(a), and 6.2, and that due diligence under RPC 1.2 requires showing the brief to a client who requests it.

Q: What should the lawyer do if the filing deadline is close?

A: The committee said the attorney should ask the court for a continuance of the filing date so the client can review the brief.

Q: What if the court denies the continuance?

A: The committee said that if the continuance is denied, the attorney may file the brief without prior client review under RPC 3.4(c).

Q: What if the lawyer simply has too many cases to comply?

A: The committee said that if the problem is the volume of cases the attorney accepts, those cases should be declined, because if the attorney cannot comply with RPC 1.2 the attorney should not take the case.

Background and rules framework

The opinion applied RPC 1.2(a) (scope and a client's right to direct the objectives of representation, corresponding to ABA Model Rule 1.2), RPC 1.3 (diligence) and RPC 1.4(a) (keeping the client informed), and RPC 6.2 (accepting appointments) to a court-appointed appellate practice for incarcerated defendants. RPC 3.4(c) (a lawyer's obligation to obey the rules of a tribunal) supplied the narrow path to file without review when a court denies a continuance. The committee treated the client's right to see the brief on request as a diligence obligation that limits how many appointed cases a lawyer may responsibly accept.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.2 (scope of representation); Washington RPC 1.2(a)
• ABA Model Rule 1.3 (diligence); Washington RPC 1.3
• ABA Model Rule 1.4 (communication); Washington RPC 1.4(a)
• ABA Model Rule 3.4 (fairness to opposing party and counsel); Washington RPC 3.4(c)
• ABA Model Rule 6.2 (accepting appointments); Washington RPC 6.2

Other opinions cited:

• ABA Committee on Ethics and Professional Responsibility, Formal Opinion 347 (1981)

See also

• WA Ethics Op. 1359: Police Reports and the Defendant
• WA Ethics Op. 1204: Plea Deal for a Disabled Client

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=787

Original opinion text

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

Advisory Opinion: 1713
Year Issued: 1997
RPC(s): RPC 1.2(a); 1.3; 1.4(a); 3.4(c); 6.2
Subject: Client communication; client request to review appellate brief before filing

[The inquiring lawyer represents incarcerated criminal defendants in appeals.] The practice of denying the client's request to review his/her appellate brief prior to filing as described in your letter is in conflict with RPC 1.2(a), 1.3, 1.4(a), and 6.2. The attorney should request from the court a continuance of the filing date, in order to allow review of the brief by the client. If the motion for continuance is denied, the attorney may file the brief without prior client review pursuant to RPC 3.4(c). If the problem with complying the RPC 1.2, 1.3, and 1.4 is the volume of cases the attorney accepts, then such cases should be declined. Due diligence under RPC 1.2 requires that the client be shown the brief if the client requests it. If the attorney cannot comply with RPC 1.2, then the attorney should not take the case. See ABA Committee on Ethics and Professional Responsibility and Formal Opinion 347 (1981).