I am Not a Moose! Or a Puppet!

The lawyer-client relationship is complicated when it comes to who decides what happens. Lawyers generally get to decide things like trial strategy, whether to call certain witnesses, and (most relevant to me) what issues to pursue on appeal. Clients, on the other hand, control the big decisions - whether to plead guilty or go to trial and (again, most relevant to me) whether to file an appeal in the first place.

What happens when the client enters into a plea bargain in which he agrees to give up his right to appeal and then tells you he wants to appeal? Most courts say the attorney must still file the appeal and let the Government bring it up in the briefs (see, for example, this post over at the Fourth Circuit Blog dealing with that kind of situation). Yesterday, the Seventh Circuit took a contrary position. Along the way, Judge Easterbrook makes an odd comparison:

These decisions all rely on the holding of Roe v. Flores-Ortega, 528 U.S. 470 (2000), that a criminal defendant has a statutory right to appellate review, and that when counsel utterly frustrates that right by failing to appeal on his client’s request,
counsel’s performance is automatically ineffective. A lawyer who does not show up for trial might as well be a moose, and giving the defendant a moose does not satisfy the sixth amendment. See United States v. Cronic, 466 U.S. 648 (1984). The same understanding applies when the lawyer does not show up for appeal.

OK (emphasis mine). An interesting analogy, to be sure. But Judge Easterbrook isn't done:

We confess to some doubt about the constitutional reasoning of the circuits that have located in the sixth amendment a rule that a lawyer is the client’s puppet.

So I am to be niether a moose nor a puppet. Good to know.