Section 1.35 Protecting the Client

• Library: App Ct Prac 2015 Supp

E. (§1.35) Protecting the Client

A lawyer’s first duty is to protect the client’s legitimate interests. If those legitimate interests are best served by not appealing, the lawyer must so advise the client. If those interests are best served by someone other than the lawyer handling the appeal, other counsel should be recommended. See Kay Nord Hunt & Eric J. Magnuson, Ethical Issues on Appeal, 19 Wm. Mitchell L. Rev. 659 (1993).

If counsel must withdraw, it must be done in a manner in which the client’s interests are well served. That usually means giving the client as much time as possible to retain another lawyer. Counsel should candidly talk to the other lawyers contacted by the client. If the appeal is taken, counsel should freely provide the other lawyer with all papers and all information he or she may need.

If a client has not paid the trial lawyer for a deposition transcript or preparation of an exhibit, that item may be ethically held in the lawyer’s possession. But trial counsel must not withhold files from the appellate attorney. Trial lawyers should not confuse an attorney’s lien on the proceeds of a case with a lien on the case files themselves. There is no lien on the case files except for the products of unreimbursed expenses, such as deposition transcripts. Also, trial counsel should not confuse the evidentiary privilege of attorney work product with any “right” to withhold that work product from the client because of a fee dispute or the lawyer’s...