The Civil-Appeal Deadline & the Disqualification of Criminal Defense Counsel

In Amador v. United States, the First Circuit held that the civil-appeal deadline applied to a criminal defense attorney’s appeal from a disqualification order. The court reasoned that the appeal did not involve the underlying conviction or sentence, nor was the appeal brought on behalf of the defendant. The appeal was thus collateral to the criminal prosecution, and the civil-appeal deadline applied.

The Disqualification Order

Simplifying a bit, Amador involved a criminal prosecution for drug offenses and other crimes. After the defendant was arrested, he claimed indigence. But three private attorneys eventually appeared on his behalf.

The government asked the district court to inquire into who was paying the fees for those attorneys. Apparently the government third-party funding, which could create a conflict of interest. The defendant objected to this inquiry, arguing that the government was trying to investigate whether someone higher “in the ladder” of a criminal enterprise was funding the defense.

The district court overruled the defendant’s objection and held a hearing. Two of the defendant’s counsel explained that they had been paid by the defendant’s mother. But a third invoked the Fifth Amendment and refused to testify. The district court then ordered that the defendant’s attorneys be disqualified. It also ordered them to disgorge any fees they had collected.

The Time for the Attorney’s Appeal

One of the attorneys (the one who had invoked the Fifth Amendment) later appealed the district court’s disqualification order. But there was a timeliness issue, as he had filed his notice of appeal 28 days after the district court entered the judgment.

The Civil & Criminal Appeal Deadlines

In a criminal case, Federal Rule of Appellate Procedure 4(b)(1) requires that a notice of appeal be filed within 14 days of the judgment. So if Rule 4(b)(1) applied, the attorney’s appeal was late.

But in a civil case in which the United States is a party, Rule 4(a)(1) requires that a notice be filed within 60 days of the judgment.

The timeliness of the appeal thus turned on which appeal deadline applied.

The Civil Deadline for Collateral Matters

The First Circuit concluded that the civil deadline applied.

The court explained that it applies “a pragmatic approach that looks to the substance and context, and not the label, of the proceeding appealed from to determine its civil or criminal character.” (Quotation marks omitted.) Appeals from orders “collateral to criminal punishment” are likely to be treated as civil appeals.

In Amador, the attorney’s appeal was collateral to the criminal prosecution:

Here, Burgos’s appeal does not challenge the prosecution of or sentence imposed on Mulero, nor is it brought by, or on behalf of, him. Instead, this appeal is brought by Burgos, a third-party in the underlying criminal case, and it challenges proceedings and a ruling below that were entirely separate from the ultimate imposition of the criminal sentence. This appeal is thus decidedly not from, but instead collateral to, the government’s criminal prosecution of Mulero.

Amador v. United States, 2024 WL 1403188 (1st Cir. Apr. 2, 2024), available at the First Circuit and Westlaw