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.
