What Happens When Your Lawyer Misses an Appeal Date?

The courts determine the outcome of cases with a missed appeal date.

Not all cases go to appeal. The losing party must give the court notice of intent to appeal within a prescribed number of days after entry of judgment. Once the notice of intent to appeal is filed, court rules say when the appeal has to be filed. If the appeal is not filed by that date, the court may still accept the appeal, depending on the reason it did not get filed in a timely manner.

Lawyer's Duty to File

If an attorney has agreed to file an appeal, whether in a civil case or criminal case, his duty to do a good job on the appeal and to file it by court deadlines is governed by the local jurisdiction's Rules of Court and Rules of Professional Conduct. According to the American Bar Association (ABA), as of 2009, every state, except California, has adopted professional conduct rules for lawyers based on the ABA Model Rules. ABA Model Rule 1.3 says that a lawyer must represent his client with reasonable diligence and promptness. A lawyer who fails to file an appeal by the required date has violated this rule.

Request for Extension of Time

The court may accept an appeal filed after the due date without requiring further action from any party. On the other hand, the court may refuse to accept the appeal. If the attorney knows he will not get the appeal filed by the due date, he should file a motion with the court that asks for an extension of time to file. Usually the court will grant an extension of time if the lawyer asks in advance.

Motion to Accept Late Filed Appeal

If the lawyer did not request an extension of time or if she requested an extension but still failed to get the appeal in on time, she can file the appeal with the court along with a motion to accept a late filed appeal. If the lawyer has a good reason for the appeal being late, the court is still very likely to grant the motion to accept the appeal late.

Lawyer Refuses to File

If the lawyer simply refuses to file the appeal or says he is going to file and then fails to do so, the client may contact the state bar association. The bar association can contact the attorney and put pressure on him to do his job. In such a case, the client may want to hire another lawyer to file the appeal who can reference the failure of the first attorney to act as required under the rules of professional conduct. Most judges will grant a second attorney considerable leeway when she is stepping in as a result of professional misconduct on the part of the original attorney, especially where the client bears no responsibility for the first lawyer's actions.

Judge Denies Filing of Appeal

If all reasonable measures have been taken by the client and his attorney to get an appeal filed and the judge still refuses to accept the late appeal, the lawyer can file a motion to reconsider with the judge, laying out all the reasons why, in the interest of justice, the appeal should be heard. If the judge still refuses, the attorney can file an appeal with a higher court.

References

• American Bar Association: ABA Model Rules of Professional Conduct