Trial and appellate counsel may differ for a variety of reasons, not all of which reflect poorly on one or the other. On occasion, however, trial counsel may have acted so unprofessionally or ignorantly as to be the target of strong remarks by the appellate court. In this case, the appellate court should and often does inform readers of its decision that the same attorney did not appear in both courts.
In Evitts v. Lucey, 469 U.S. 387, 391 n.3 (1985), the Court observed: “The District Court also referred respondent’s counsel to the Board of Governors of the Kentucky State Bar Association for disciplinary proceedings …. Respondent is not represented by the same counsel before this Court.” The Seventh Circuit was “acutely aware of the fact that Mr. Gruel during the initial pursuit of this theater project was not represented by the same counsel that represented him in connection with this particular piece of litigation.” Budget Cinema, Inc. v. Watertower Associates, 81 F.3d 729, 732 n.1 (7th Cir. 1996). In Brown v. Dick, 107 P.3d 260, 263 n.4 (Alaska 2005), “Brown secured new counsel on appeal and is not represented by the same counsel who handled his case below.”
These sorts of remarks are important. The trial court decision is often not published, so the available record is simply that a particular attorney was representing the party at the time the negative remarks were made. Who can know in years to come, especially after the records of the trial court are destroyed, which attorney represented the party and at what times. The more incompetent or unethical the blunder in the trial court, the more important it is that the appellate court spare the implication that counsel on appeal may have committed the blunder. If omitted, this correction is one that the new counsel on appeal may be hesitant to request, so all attorneys should take responsibility to seek addition of a simple footnote stating the facts.