Notice of Appeal Effective Even If Signed By Foreign Lawyer Not Admitted Pro Hac Vice

An appeal could not be dismissed merely because the notice of appeal was signed by an out-of-state lawyer, even if that lawyer was not admitted pro hac vice in Alabama. Ex parte Taylor, No. 1051315 (Ala. Jan. 18, 2008). Though a criminal case, Taylor has obvious relevance to civil practice.

The defendant timely appealed from the circuit court’s denial of post-conviction relief. His notice of appeal was signed by a New York lawyer who had been admitted pro hac vice for the case. The State convinced the Court of Criminal Appeals that, in fact, the out-of-state lawyer had not been so admitted; and, on this ground, the appeal was dismissed.

The Supreme Court of Alabama took the case on certiorari and reversed the dismissal, holding that the intermediate court should have entertained the case. In so holding, the state’s high court reviewed some important points about notices of appeal — their required content and their efficacy even when “technically deficient.”

The court first noted that the New York lawyer, by all appearances, had been admitted pro hac vice. The contrary finding by the Court of Criminal Appeals “appear[ed] to be incorrect.”

More important, or at least more interesting, the Supreme Court of Alabama also held that the notice would have been effective, and the dismissal erroneous, even if the New York lawyer had not been admitted. The court reasoned that the notice of appeal was timely. Moreover, it satisfied Ala. R. App. P. 3, which requires that a notice do three things: 1) specify the party or parties taking the appeal; 2) identify the order(s) appealed from; and 3) name the court to which appeal is made. Even if the notice had not contained these things, though, it still would have been effective, and the appeal still could not have been dismissed. The court wrote: “A notice of appeal, even if technically deficient, is valid if ‘the intention to appeal from a specific judgment may be reasonably inferred from the text of the notice.’” “The defect on [this defendant’s] notice — a signature of an attorney purportedly not admitted to practice in Alabama — is not grounds for dismissal because a signature is not a jurisdictional requirement for a notice of appeal.”

The court then reviewed cases in which technically deficient notices were held to have effectively lodged appeals. The “only jurisdictional requirement for a notice of appeal,” the court recited, “is that the notice be timely filed.” As for other defects, “absent a showing that the alleged defect . . . prejudiced the adverse party, an appeal will not be dismissed on the basis of the defect.”

The Court of Criminal Appeals thus had erred in dismissing the appeal on the ground that the lawyer “who signed the notice of appeal, had not been granted pro hac vice status.” The case was remanded to the criminal appellate court for further proceedings.