Rule 75 of the Utah Rules of Civil Procedure governs the filing of a “limited” appearance of counsel, even in criminal cases. Because there is no relevant rule of criminal procedure rule addressing limited appearances, the civil rule applies. See Utah R. Civ. Pro. 81(e).
Can a defense attorney file a “limited” appearance of counsel in a Utah criminal case?
While the rules do allow a defense attorney to file a limited appearance of counsel in a criminal case, it is rarely done. Most often, a criminal defense attorney will file a general appearance of counsel that puts the court and prosecution on notice that the defendant is now a represented party and that communications and notices, from the court or from the prosecution, should be made through counsel.
There are several reasons why a limited appearance is rare in criminal cases. The language of Rule 75 provides some of those reasons. But often, the most important reason is that successfully defending against criminal charges will require a comprehensive strategy that incorporates multiple issues in the case.
Allowable Purposes of a Limited Appearance
Rule 75(a) lists four specific purposes for which a limited appearance can be filed. The listed purposes are:
- filing a pleading or other paper with the court;
- acting as counsel for a specific motion;
- representation only for a specific discovery procedure; and
- acting as counsel for a specific hearing.
The rule also includes a fifth “any other purpose” provision, but requires that the attorney obtain permission from the court first.
Notice Required by Rule
Before beginning a limited representation in a criminal case, Rule 75(b) requires that a defense attorney first file a Notice of Limited Appearance. The notice must be signed by both the attorney and by the defendant. The requirement of filing a written notice can be waived by the judge if such notice is given orally and on the record during a proceeding.
Functional Purpose of Notice to Parties and Court
The notice requirement serves to provide notice to the court and to opposing counsel (prosecution) as to what issues, matters, etc. are being handled by the defense attorney who has filed the limited appearance. A notice that only references “the purposes established in the representation agreement” and attempts to “incorporate such purposes by reference” does not provide the actual notice required under the rule.
Duration v. Scope
To better understand the concept of a “limited” appearance, we can look at the differences between “duration” of representation and “scope” of representation.
Duration (When): The duties of defense counsel and the obligations of the prosecution to defendant through counsel regarding formal criminal court proceedings begin when the defense attorney enters an appearance of counsel. Those duties and obligations end in connection with formal court proceedings when the court orders or allows defense counsel to withdraw from the case. In other words, representation in court proceedings begins with the entry of an appearance of counsel, and ends with a withdrawal.
Scope (What): The “limited” nature of a limited appearance refers to specific matters, issues, hearings, motions, etc. that are the subject of representation.
Client’s Agreement and Signature
The rule requires that the limited appearance be signed by the attorney as well as by the client. As a practical matter, this ensures that the client is aware of and understands that the attorney is not entering a general appearance, but that the scope of the representation is limited. Being clear with the client on such matters is important to maintaining a good professional relationship.
Potential Uses for a Limited Appearance in Criminal Defense
As noted above, successful criminal defense requires consideration of broader issues in the case and the incorporation of negotiation and trial strategies. But there may still be situations in which a limited appearance can make sense. Two possibilities are discussed briefly below.
Arraignment or Initial Appearance – Recalling a Bench Warrant
When a criminal case is first filed in Utah, the prosecutor will often include a written request that the court issue an arrest warrant. If the court grants the warrant request, setting a court date (arraignment or initial appearance) or filing a motion to recall the bench warrant can be time-critical steps in avoiding arrest and jail.
Because time and speed are important at this stage of the defense case, it can make sense to file only a limited appearance in accordance with Rule 75. Further details of a representation agreement can then be worked out after the warrant has been recalled.
Motion to Suppress Evidence
A motion to suppress (on 4th Amendment or 5th Amendment grounds) will often involve more than one court hearing. But because suppression involves a single specific motion, a limited appearance is allowable under Rule 75.
Caution, however, should be exercised in deciding whether a limited appearance is appropriate for a suppression motion. Because suppression of evidence is often part of a larger case strategy to put pressure on the prosecution to negotiate more reasonably, a defense attorney must have a solid understanding of other important issues in the case.
Circumstances are rare under which a limited appearance of counsel would be helpful or appropriate in Utah criminal defense cases. But when filing a limited appearance does make sense, it is important to be sure that the client understands the nature of such limitations and that the requirements of Rule 75 are followed.
** Notice to Non-Attorneys: Please be aware that this article is intended for use by licensed attorneys practicing in Utah courts. It is best understood in context with other relevant statutes, procedural rules, and constitutional principles. If you are facing criminal prosecution, we strongly advice contacting a qualified defense attorney for assistance.