July 29, 2010

Associations of counsel in the Supreme Court

Imagine you have been contacted by a client who has lost in the California Court of Appeal and wants to hire you to file a petition for review in the California Supreme Court. How do you become official “counsel of record” for the Supreme Court proceedings? The answer is more complicated than you might think. Don’t bother looking in the rules of court. You won’t find an answer there.

You might think of filing an association of counsel in the Supreme Court. That seems straightforward enough. After all, if the client wanted to bring you in as new counsel for an appeal, you would simply file an association of counsel in the Court of Appeal.

But if you file an association of counsel in the Supreme Court along with your petition for review, you’ll find that the Supreme Court’s clerk’s office won’t accept the association for filing. The clerk’s office will tell you that they cannot accept an association of counsel in a case where the Supreme Court has not granted review, because the Supreme Court lacks jurisdiction over the case. The clerk’s office takes the position that the Court of Appeal still retains jurisdiction over the case until the Supreme Court grants review or the Court of Appeal issues its remittitur and returns jurisdiction to the trial court.

OK, if the Supreme Court’s clerk’s office won’t accept the association of counsel, then you just file an association of counsel in the Court of Appeal, right? Not so fast. In some of the appellate districts in the state (e.g., the Second Appellate District in Los Angeles), the clerk’s office won’t accept an association of counsel after the court’s opinion has already become final. The opinion becomes final 30 days after it is issued, so if you try to file an association of counsel in the Court of Appeal on day 31, the clerk’s office may not accept it.

So what do you do if the client contacts you on day 31? At that time, both the Supreme Court’s clerk’s office and the Second District clerk’s office will refuse to accept your association of counsel. If you think this sounds like a Catch-22, you’re right. But there is a practical, albeit imperfect, solution. Go ahead and file your association of counsel in the Court of Appeal, and serve a copy on the Supreme Court. The Supreme Court clerk’s office will add your name to the on-line docket when they receive the service copy of the association. It doesn’t really matter whether the Court of Appeal accepts the association for filing, because the Supreme Court will recognize you as counsel of record, which is all you need at the petition stage. Well, that and an order granting review.

3 Responses to “Associations of counsel in the Supreme Court”

  1. If the client hired you to file the review petition, why not just put your name on the cover of that document as counsel for the petitioner? That should suffice to make you counsel of record in the Supreme Court proceeding.

  2. Thanks for the comment, Kim. In our experience, if you put your name on the cover of a petition without filing an association of counsel, the Supreme Court won’t recognize you as counsel of record. I tried that myself when we filed the petition for review in O’Neil v. Crane Co., which is currently pending before the court. The court accepted the petition but they didn’t list me or my firm as counsel of record on their on-line docket and they didn’t serve us with copies of orders. I inquired with the clerk’s office and they directed me to file an association of counsel.

  3. I have not experienced that problem. In the past I’ve simply put my name on the petition, and that was sufficient. My name appeared as counsel of record on the online docket and I received copies of orders.

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