Suggested Amendments

Rules of Appellate Procedure

RAP 10.2—Time for Filing Briefs

RAP 10.10—Statement of Additional Grounds for Review

RAP 5.3—Content of Notice—Filing

1. Proponent: Washington State Office of Public Defense

2. Spokesperson: Gideon Newmark, Appellate Program Manager

3. Purpose: RAP 10.2(h) requires defense attorneys in criminal appeals to serve their clients with a copy of the appellant’s brief and file proof of service in the appellate court. This rule is unnecessary because ethical and contractual rules already require attorneys to provide clients with a copy of critical filings such as briefs. And the rule is an aberration in legal procedure that inserts the appellate courts into the attorney-client relationship and puts the health and safety of clients at risk. While RAP 10.2(h) currently serves a role in the Statement of Additional Grounds (SAG) process by confirming the date that the client was sent the appellant’s brief, minor amendments to RAP 10.10(c) could ensure that the SAG process continues to function smoothly. These amendments would also make unnecessary RAP 5.3(c)’s requirement for counsel in criminal cases to keep the Court of Appeals informed of the client’s current address.

Ethical and contractual rules already require attorneys to provide clients with copies of critical filings such as the appellant’s brief. RPC 1.4 requires attorneys to consult with clients about the means by which the client’s objectives are to be accomplished, and to keep the client reasonably informed about the status of the case. There is no plausible reading of this rule that would excuse counsel from providing the client with copies of critical filings such as the appellant’s brief. Moreover, indigent defense contracts with the Office of Public Defense, covering the great majority of criminal appeals, require appointed counsel to provide the client with copies of all briefs. These ethical duties and contractual obligations make it unnecessary for a court rule directing attorneys to formally serve their clients with the appellant’s brief.

Not only is RAP 10.2(h)’s service requirement unnecessary, it is a legal aberration insofar as it requires attorneys to serve documents on their own clients. Service is generally reserved for other parties. See CR 5 (requiring service of pleadings, motions, discovery, and other documents on other parties). And service of documents other than a complaint is normally accomplished by serving a represented party’s attorney, not the client. CR 5(b)(1). There is no need for attorneys to serve their own clients in civil cases, and there is no obvious distinction between criminal and civil cases that justifies the client-service requirement of RAP 10.2(h). Like civil attorneys, criminal attorneys should be trusted to competently and professionally handle the attorney-client relationship without a court rule micromanaging aspects thereof.

Furthermore, RAP 10.2(h) is potentially dangerous to the health and safety of clients. Some criminal clients are convicted of notorious crimes, for which they could be at risk of physical violence in prison. Or they may be subject to a loss of housing or social support if friends or family learn about their convictions. Hence, some clients do wish not to receive the appellant’s brief, or any other documents from counsel detailing their convictions, because those documents could be read by cellmates or household members. Clients should be able to decide which documents they wish to receive from counsel; RAP 10.2(h) takes authority away from clients in a way that has the potential to directly threaten their health and safety.

RAP 10.2(h)’s primary purpose seems to be facilitating the SAG process. Per RAP 10.10(d), the SAG deadline may not run until the client has received the appellant’s brief, as well as notice from the appellate court of the SAG procedures. By requiring attorneys to serve their clients and provide the court with proof of service, the court is assured that the client has received the brief and that the SAG deadline may start running. This is the practice in only two of the three Court of Appeals divisions, however.

OPD is informed that, in Division I, the court sends the required SAG notice to counsel, who forwards it to the client along with the appellant’s brief. Division I starts the SAG deadline running when notice is mailed to counsel, without requiring proof of service to show when the client received it. Appellate attorneys practicing in Division I report that this process works flawlessly and has done so for years. This process simplifies matters for both attorneys and the courts; the courts have no need to closely track a client’s whereabouts to ensure the client receives the SAG notice, and the attorneys have no need to file proof of service when providing the client with the appellant’s brief.

The Office of Public Defense therefore suggests that RAP 10.2(h) be amended to eliminate the requirement to serve the client with a copy of the brief, and that RAP 10.10(c) be amended to provide that the appellate court will send notice of SAG procedures to the attorney, who must promptly forward it to the client. With the need for the appellate courts to send the SAG notice directly to clients eliminated, RAP 5.3(c) should also be amended to drop the requirement that appellate counsel in criminal cases keep the courts apprised of the client’s current address.

To avoid any prejudice to the client, the proposed amendment to RAP 10.10 adds five days to the SAG deadline. This should allow sufficient time for the attorney to forward the court’s notice of SAG procedures without impinging on the client’s time to file the SAG. Given that the case’s briefing will not be completed for at least 90 days after the appellant’s brief is filed, these additional five days should not impact case resolution time.

D. Hearing: A hearing is not requested

E. Expedited Consideration: Expedited consideration is not requested

F. Supporting Material: Suggested rule amendments