January 20, 2020

A series of amendments to the Rules of Appellate Procedure that go into effect May 1, 2020 will standardize procedures that affect hybrid representation, counsel withdrawal limitations where a party is entitled to counsel, and nunc pro tunc petitions for allowance of appeal in criminal cases  in which the defendant directed counsel to file but counsel failed to do so timely.

Hybrid representation, now a defined term (“[a]n attempt to act as counsel for oneself when one has counsel of record” see Pa. R.A.P. 102), has been problematic for the appellate courts, and new subsection (g) to Pa. R.A.P. 121 now extends the Superior Court’s practice to all of the appellate courts: where a party is represented by counsel only certain documents will be accepted for filing if filed by the party:

(g) Hybrid representation.— Where there is counsel of record, a party may file only the following documents pro se: (i) a notice of appeal; (ii) a request to change or remove counsel; (iii) a response to a motion to withdraw that has been filed by counsel of record; (iv) a complaint that existing counsel has abandoned the party; or (v) an application to file a petition for allowance of appeal nunc pro tunc. Any other document that a party attempts to file pro se will be noted on the docket but not accepted for filing. This rule is not intended to provide an independent basis for jurisdiction where it does not otherwise exist.

Counsel withdrawal limitations on appeal relate primarily to criminal and juvenile matters, but also extend to other types of cases, as the newly added definition of “counsel of record” in Pa. R.A.P. 102 clearly indicates:

Counsel of record.—All attorneys who were counsel of record in the trial court at the time of the filing of the notice of appeal will be counsel of record in the appellate courts. For a criminal defendant, the representation extends up to and including the filing of a petition for allowance of appeal and the handling of such an appeal if granted, unless (1) substitute counsel has entered an appearance and is expressly identified in the praecipe as substitute, rather than additional, counsel; (2) the Court of Common Pleas has entered on the docket an order permitting the attorney to withdraw; or (3) an application for withdrawal is granted by the appellate court.

The amendments and related official notes make clear that in criminal matters where a party is entitled to continued representation on appeal, the appellate court will presume that counsel of record in the trial court will also represent the party on appeal absent a basis for withdrawal:

A party may be entitled to the representation by counsel on appeal by constitution, statute, rule, and case law. For example, the Rules of Criminal Procedure require counsel appointed by the trial court to continue representation through direct appeal. Pa.R.Crim.P. 120(A)(4) and Pa.R.Crim.P. 122(B)(2). Similarly, the Rules of Criminal Procedure require counsel appointed in post-conviction proceedings to continue representation throughout the proceedings, including any appeal from the disposition of the petition for post-conviction collateral relief. Pa.R.Crim.P. 904(F)(2) and Pa.R.Crim.P. 904(H)(2)(b). The same is true when counsel enters an appearance on behalf of a juvenile in a delinquency matter or on behalf of a child or other party in a dependency matter. Pa.R.J.C.P. 150(B), 151, Pa.R.J.C.P. 1150(B), 1151(B), (E). It would be rare for counsel in such cases to consider withdrawing by praecipe, but the 2020 amendment to the rule avoids any possibility of confusion by clarifying that withdrawal by praecipe is available only in matters that do not otherwise require court permission to withdraw. If a party is entitled to representation on appeal, the appellate court will presume that counsel who represented the party in the trial court will also represent the party on appeal, and counsel will be entered on the appellate court docket. In order to withdraw in such cases, either (1) new counsel must enter an appearance in the appellate court prior to or at the time of withdrawal; (2) counsel must provide the appellate court with an order of the trial court authorizing withdrawal; or (3) counsel must petition the appellate court to withdraw as counsel. Counsel for parties entitled to representation on appeal are cautioned that if any critical filing in the appellate process is omitted because of an omission by counsel, and if the party ordinarily would lose appeal rights because of that omission, counsel may be subject to discipline.

Pa. R.A.P 907 (Official Note).

The amendments also address situations in which a criminal defendant has directed counsel to file a petition for allowance of appeal, but counsel fails to do so on a timely basis, thereby giving rise to the need for the filing of a petition for allowance nunc pro tunc.  New subsection (d) of Pa. R.A.P. 1113 provides:

(d) Nunc pro tunc filing.—In addition to the right of any petitioner to seek nunc pro tunc relief in compliance with the standard set forth in case law, in a criminal case, a party may, (either pro se or through counsel) file an application for permission to file a petition for allowance of appeal nunc pro tunc if the party directed counsel to file a petition for allowance of appeal but counsel did not do so timely. If the Court cannot determine whether nunc pro tunc relief is appropriate from the information provided, the Court may remand to the trial court for factual findings.

Finally, factual issues may arise concerning representation on appeal and this set of amendments recognize that the appellate court may seek to retain jurisdiction under Pa. R.A.P. 1701 while directing the lower tribunal to find the necessary facts related to representation.  As the amended note to Pa. R.A.P 1701 explains:

Subparagraph (b)(5) recognizes the authority that an appellate court has to retain jurisdiction while asking a trial court or other government unit to engage in factfinding, an authority that is particularly important when questions arise in an appellate court about the course of events in the trial court or when representation by counsel becomes an issue on appeal.

The new definitions and other amendments largely codify what has been existing practice in cases in which a party is entitled to representation that extends to appeals and petitions for allowance of appeal, but lawyers should review them carefully as new terms are used and defined and practices that previously were matters of case law are now formalized as procedures applicable to all of the appellate courts.

About the Author:

Kevin McKeon, partner at Hawke, McKeon & Sniscak, LLP, represents a diverse array of clients before Pennsylvania state agencies, and state and federal appellate courts. A co-author of West’s Pennsylvania Appellate Practice and immediate past chair of the Pennsylvania Appellate Court Procedural Rules Committee, Kevin uses his comprehensive knowledge of Pennsylvania appellate procedural rules to guide clients through complex appellate proceedings.