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New attorney on appeal; what it means to be “of counsel” to an “attorney of record”

Some attorneys are good at both trial and appellate litigation and sometimes it is a good idea to continue with the same lawyer or law firm when a litigant finds themselves in an appellate court either as an appellant or a respondent. There are some situations in which it is advisable to retain new counsel. An attorney named Dennis Owens wrote an excellent article called New Counsel on Appeal? concerning that issue that was published by the American Bar Association. Even though it is 25 years old, it is still relevant. You will find it at the end of this page.

Most of my work is referred to me by other attorneys. Sometimes another attorney calls me directly or has their client call me. It is my custom and practice to work “of counsel” to the “attorney of record.” When I am retained to take and perfect an appeal, I am responsible for filing and serving the notice of appeal and any other documents required to start the process as well as for producing the record on appeal and briefs and presenting oral argument. There is still a contract or retainer between me and the client. On all documents, my name appears near the name, address and telephone number of the attorney of record. I am still responsible to both the party or litigant and the attorney of record for those matters that are within the scope of my contract with the client. The “of counsel” relationship signifies the fact that the attorney of record is still the attorney for the client even while I am working as appellate counsel.

There are situations where, for one reason or another, a litigant or party comes to me directly; situations where the litigant or party has no “attorney of record,” for a variety of reasons. If, after reviewing your case an attorney of record is needed, I can assist you in finding an attorney who has expertise in your particular case.

Albany NY New Attorney On Appeal Click to download this article by Dennis Owen from Litigation (Spring 1989)




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