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Keywords

contractdefendantattorneynegligenceappealpleahabeas corpuscontractual obligation

contractdefendantattorneyappealtrialcontractual obligation

Related Cases

In re Fountain, 74 Cal.App.3d 715, 141 Cal.Rptr. 654

Facts

Edward A. Fountain was convicted of possessing a controlled substance for sale and pleaded guilty, resulting in a prison sentence. His mother paid an attorney $500 to file a notice of appeal within the 60-day period, but the attorney failed to file it on time, citing a lack of the full fee. The attorney's failure to act led Fountain to seek relief through a writ of habeas corpus.

Fountain was represented by appointed counsel in the trial court. That counsel did not file a notice of appeal nor is it anywhere suggested in the records of this proceeding he was requested to do so. Fountain's mother, however, paid $500 to present counsel within the 60-day period to file a notice of appeal. That fee clearly related to the processing of an appeal. No other justification for it appears in the record.

Issue

Did Fountain's mother effectively act on his behalf in hiring an attorney to file a notice of appeal, and did the attorney's conflict of interest prevent him from providing effective representation?

Rule

A defendant may constructively file an appeal if they have taken reasonable steps to ensure that an attorney is engaged to file the notice of appeal within the required timeframe, and an attorney's conflict of interest can impair their ability to represent a client effectively.

Analysis

The court determined that Fountain's mother acted on his behalf when she paid the attorney to file the appeal, creating a contractual obligation for the attorney to protect Fountain's appeal rights. The court found that the attorney's failure to file a timely and adequate notice of appeal was due to his own negligence and conflict of interest, not a lack of diligence on Fountain's part.

We find as reasonable inferences that Fountain's mother acted on his behalf and with his authority when she paid the attorney $500 to undertake his appeal. We further find that, at a minimum, counsel's acceptance of the money created a contractual obligation on his part to protect Fountain's appeal rights by filing a timely and adequate notice.

Conclusion

The court granted the writ of habeas corpus, concluding that Fountain constructively filed an appeal and was entitled to relief. The attorney was terminated from representation, and all fees paid were to be returned.

The writ is granted. Present counsel is terminated as counsel for petitioner and he is ordered to return all monies received by him for his legal representation of petitioner in this proceeding as well as in the appeal of petitioner's conviction in San Diego Superior Court action number CR-36135.

Who won?

Edward A. Fountain prevailed in the case because the court found that he had constructively filed an appeal through his mother's actions and that the attorney's failure to act was egregious.

We find no reasonable inference Fountain did not rely on his attorney. There is nothing in the record to show counsel communicated to Fountain that he had encountered any problems in processing the appeal.

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