To appeal or not to appeal

Many factors are involved in the clients' decision to appeal a case.  One aspect of the decision has to involve the economics of appealing.  While I am admittedly miserable at math, I advise clients to balance the chance of success against the costs and fees involved.  If an attorney's fee provision or statute is involved, I advise the clients - both at our first meeting and in writing - that if the appeal is lost, they may also have to pay attorney's fees to the opposing side.  Even if attorney's fees are not involved, clients may still incur significant costs for retrying a case after a successful appeal.

Criminal cases are different because they usually involve a defendant's freedom.  But the decision to appeal still must be balanced against the risks and benefits.  Take a look at United States v. Beltran-Moreno (9th Cir. 2009) 2009 WL 310915.  In that case, the 9th Circuit soundly chastised the appellate attorneys for appealing from an erroneous sentence that benefited the defendants.  The trial court calculated the mandatory minimum sentence 20 years lower than that required by statute and ignored Guidelines that suggested the defendants be imprisoned for life.

Rather than accepting these inadvertent gifts, and "[f]or reasons beyond [the 9th Circuit's] understanding," defendants' appellate counsel appealed their sentences, relying on an argument that had been "squarely foreclosed by decades-old circuit precedents." (Id. at p. 1591.)  The 9th Circuit observed, "Counsel do not urge us to reconsider any of these precedents; rather, they appear simply to be ignorant of the controlling law." (Id. at p. 1592.)

Fortunately, this strategy did not result in more prison time because the appellate court cannot raise a defendant's sentence if the government has not appealed.  The appellate attorneys could take some comfort from the fact that even though they had potentially exposed their clients to a longer, if not life long, detention, no damage was actually done.

Except, of course, to the attorneys' reputation, when the 9th Circuit concluded its Opinion, noting that the right to counsel includes an attorney's skill and knowledge:

       "We remind counsel that the professional norms that establish the constitutional baseline for their effective performance indisputably include the duty to research the relevant case law and to advise a client properly on the consequences of an appeal.  While it is ultimately the client's right to pursue an appeal, we seriously question the quality of counsel's advice when an appeal with essentially zero potential benefit and a significant opportunity for harm is pursued in such a manner as this one has been.  We also remind counsel of their ethical obligations not to present arguments to this court that are legally frivolous.  Fortunately, in this instance, counsel did no serious harm to their clients, and have escaped this appeal without the imposition of sanctions."

(Id. at p. 1594.)  Ouch!