What to Do if You’re Not the First Lawyer on the Case

Another lawyer contacted me about a case she is working on. She wasn’t the trial counsel. She wasn’t the lawyer on the motion for new trial. In fact, one lawyer handled the trial. A second lawyer handled the motion for new trial. She was hired after the motion for new trial was denied but just before the appeal was docketed in the Georgia Court of Appeals. She wanted to raise ineffective assistance of trial counsel on appeal How could she do that?

She had found a case that seemed to speak to this situation. In Ruiz v. State (2009), appellate counsel took over in just the situation described above. Appellate counsel entered an appearance after the appeal was docketed for appeal. Motion for new trial counsel entered an appearance after the trial was over but chose not to raise a claim of ineffective assistance of counsel. Counsel requested a remand so that he could raise ineffective assistance of motions counsel.

The Court held that ineffective assistance of trial counsel was waived because new counsel failed to raise ineffective assistance of counsel at his earliest practicable opportunity, which would have been the motion for new trial stage. However, the Court went ahead and reached the merits of the ineffective assistance of motions counsel issue on the record before it without making a remand. Though, from the language of the opinion, had the issue not been apparent from the record, a remand for a hearing on ineffective assistance of motions counsel would have been authorized.

So, my advice to the lawyer who called me was to do one of three things:

1. Don’t raise ineffective assistance of counsel either against trial counsel or motions counsel. Hold off on raising those issues on habeas. To raise the issue on appeal risks the appellate court looking at the record before it and making a summary decision and depriving the client of an evidentiary hearing. The scary and risky side of going this route is that the habeas court could say that you had the burden of raising ineffective assistance of motions counsel at the earliest opportunity and that the failure to raise it on appeal amounted to a waiver.
2. Raise ineffective assistance of motions counsel on appeal a la Ruiz. Doing so minimizes the risk of a waiver. However, doing so also risks the court taking a cursory glance at your issue, making a decision, and depriving you of a remand. My advice to the lawyer was to raise the issue but raise something that could not be resolved easily on the record and write into the briefs the reasons an evidentiary hearing was necessary. The other downside is that you put yourself right before the same court that heard the trial and original motion for new trial
3. Get motions counsel to sign off on the brief. This option gets you out of the dilemma in one and two above. However, there might still be a question as to whether you would be able to raise ineffective assistance of counsel on motions counsel if he was on the “appeals team” with you.

Ruiz leaves the issue completely open in a situation where you come on as appellate counsel, and it appears that option two is the best way to go.

On the other hand, if you were trial counsel, you cannot raise ineffective assistance of counsel on yourself. If you come on board after the motion for new trial is denied, and you are the first post-conviction lawyer on the case, then you can request a remand to raise ineffective assistance of counsel. But you should still brief all the other issue on appeal. If you enter the picture at the motions stage, you must raise ineffective assistance of counsel if you don’t want to waive it. Of course, if you inherit a case where trial counsel handled the direct appeal, you may raise ineffective assistance of counsel on habeas.

Most of the situations dealing with when and how to raise ineffective assistance of counsel have arisen in the law, but many are not quite resolved. If you have questions, take a look at Ruiz and check out the case law contained within that opinion.