Opportunities for Pro Bono Appeals in North Carolina by Troy Shelton
Ellis & Winters
This article is reprinted from Per Curiam, the newsletter of the Appellate Practice Section of the North Carolina Bar Association.
There are many North Carolina lawyers who would happily undertake appellate litigation on a pro bono basis—if only they could find it.
Appellate litigation constricts the universe of facts and puts the focus on the law. This framework lends itself to lawyers who like to focus on research and sharpen their rhetorical swords. Appellate litigation is also a natural fit for new law school graduates and recent law clerks, who have focused their efforts on research and writing.
For practitioners looking to gain experience in appellate litigation, or for practitioners interested in public service, pro bono cases present a great opportunity. But the North Carolina lawyer looking for pro bono appellate opportunities won’t find any comprehensive guide on the topic. This article aims to spotlight opportunities that might be easily overlooked.
Below are the available civil and criminal opportunities available for pro bono appeals in both state and federal courts. The article concludes with some thoughts on new opportunities for pro bono appeals in North Carolina’s appellate courts.
North Carolina Pro Bono Resource Center
The new kid on the block, the North Carolina Pro Bono Resource Center, seeks to be a central hub to connect North Carolina lawyers with all types of pro bono projects. The center operates under the auspices of the North Carolina Equal Access to Justice Commission. It is led by Sylvia K. Novinsky, the former assistant dean for public service programs at the University of North Carolina School of Law.
Although the Pro Bono Resource Center began in spring 2016, the center’s website already has numerous pro bono programs available for lawyers. The website allows users to narrow the projects to those involving just appellate advocacy. The website can be accessed at www.probono.net/nc.
Having known and worked with Ms. Novinsky in the past, I have no doubt that the center will become an important resource.
Opportunities in the 4th Circuit
The 4th Circuit administers two panels for lawyers looking to serve indigent clients.
One panel is the Criminal Justice Act (CJA) Panel. This panel exists to appoint lawyers to (primarily) criminal defendants who have a right to appellate counsel, though appointments can also be made in other types of criminal cases at the discretion of the court of appeals. Often, these appeals arise out of a felony conviction, though there are a handful of other categories of CJA appointments. CJA appointments are not technically pro bono because CJA lawyers are compensated by the courts, though all CJA clients are indigent.
The application period for the CJA Panel runs from June 1 to Sept. 1 of each year. Those interested can complete an online application available at the 4th Circuit’s website. Applicants will need to demonstrate experience in, and knowledge of, federal criminal law, appellate procedure, and the federal Sentencing Guidelines. Considerably more experience is required for lawyers applying to the CJA Capital Appellate Panel.
The 4th Circuit’s other panel is the Discretionary Panel. Appointments from this panel can arise in a wide variety of cases:
Some appointments come from “discretionary” CJA cases, such as criminal misdemeanors or habeas corpus matters. In these matters, the criminal defendant does not have a right to appellate counsel, but the court of appeals can determine that the interests of justice necessitate appellate counsel.
In certain types of civil cases, where an indigent party is appealing pro se, the 4th Circuit may appoint counsel if the court believes that “further briefing and possible oral argument would be of assistance.”
Finally, the 4th Circuit may appoint “amicus” counsel in cases where a pro se is not indigent or the court does not believe that an issue has been sufficiently covered by the parties.
Lawyers interested in serving on the Discretionary Panel should have appellate experience and the ability to brief and orally argue a case. Most appointments from the Discretionary Panel receive oral argument, given that the 4th Circuit has already expressed interest in the case. There is no formal application for the Discretionary Panel. Instead, applicants should send a resume and cover letter to Melissa L. Wood, Senior Staff Attorney, at 1100 East Main Street, Suite 325, Richmond, Virginia 23219.
Participation in any of these panels also requires that a lawyer be admitted to practice in the 4th Circuit. More information about each panel and the application processes can be found at www.ca4.uscourts.gov/appointed-counsel.
Opportunities in North Carolina’s Appellate Courts
The pro bono opportunities available in the state appellate courts are different. There are two established systems in the state appellate courts.
First, there is the volunteer appellate program run by the North Carolina Guardian ad Litem Program. This program is led by Matthew Wunsche. Guardians ad litem are appointed to represent the best interests of minors in cases where there are allegations that juveniles have been abused or neglected. These cases have a strong need for appellate counsel, not only because there are so many of them, but also because each case provides parents facing termination of their parental rights with multiple opportunities for interlocutory appeals. The Guardian ad Litem Program relies on a wide base of pro bono lawyers to handle these matters.
The procedure in these cases is slightly different from that in a typical appeal. Most aspects of the appeal are governed by Rule 3.1 of the North Carolina Rules of Appellate Procedure. That rule expedites the case, and extensions of time are highly disfavored. In addition, oral arguments are not given for these appeals when they are pending before the Court of Appeals.
In the North Carolina Supreme Court, however, oral argument in Rule 3.1 cases is possible. For example, an associate at Ellis & Winters, Steven Scoggan, prevailed in an appeal before the Court of Appeals—but there was a dissent. The parent appealed to the Supreme Court as a matter of right. In the Supreme Court, the appeal was briefed anew, and the court heard oral argument (as it does in almost every case). As this case illustrates, litigating a Rule 3.1 case before the state’s highest court is a possibility.
The Guardian ad Litem Program is always looking for new appellate volunteers. For more information, see the program’s website at www.volunteerforgal.org.
The other established system is primarily for criminal appeals. The Appellate Defender, through the Office of Indigent Services, administers the Appellate Roster. The bulk of assignments from the Appellate Roster are non-capital criminal appeals. However, counsel are sometimes assigned to represent parents opposing termination of their parental rights in the cases mentioned earlier, involving allegations of juvenile abuse and neglect.
There are separate applications for the Appellate Defender’s capital and non-capital rosters, as for the CJA Panel in the 4th Circuit. The application for the non-capital roster requires writing samples, a resume, and references. The application also requests three cases in which the applicant has represented an appellant to judgment. If an applicant cannot meet any of the application’s requirements, a waiver can be requested. As in the 4th Circuit, the application for the capital roster requires even more experience.
These two programs are the primary pro bono opportunities in North Carolina’s appellate courts. But some lawyers are hoping to add new opportunities. For example, Daphne Edwards, chair of the Appellate Section’s Pro Bono Committee, has begun working in her committee to create an additional system to connect indigent clients with appellate practitioners. Her proposed system would start first with family law cases arising from Wake County. But the formulation of the program is still in its infancy, and the details are subject to change.
Although not currently on the table, another possibility would be the creation of a system like the 4th Circuit’s discretionary panel for cases not falling under the Appellate Roster. The clerk of court could manage a roster of lawyers willing to serve as pro bono counsel. To avoid expected conflicts of interest, that roster could enable lawyers to volunteer for particular categories of cases. Appellate judges, their staff, or the clerk of court (or some combination of these) can identify where briefing and argument by experienced counsel would assist in resolution of the case.
Regardless, pro bono appellate service is important for all constituents. Lawyers receive experience and enjoy the opportunity to give back to their communities. Indigent litigants receive critical assistance in navigating the appellate process and presenting their case. And the courts receive the benefit of issues that are better presented for adjudication. That, in turn, aids in the development of the law—a benefit for everyone.
Troy D. Shelton is an attorney with Ellis & Winters LLP in Raleigh. His practice focuses on complex civil litigation, administrative law, and appeals.
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