Hybrid Representation In The Appellate Court

The law affords a person the right to hire an attorney to represent him in a civil or criminal proceeding or to represent himself, that is, to appear pro se.  But does a person have a right to have a lawyer appear on his behalf in a case AND to enter a pro se appearance as well?  Is there a right to “hybrid” representation?

I raise this question in light of my own recent experience in an appeal in which the defendant did just that–he had a lawyer and appeared pro se–and in light of a story a colleague at the bar told me about a case in the Appellate Court involving a similar situation.

First, the story, because it is more entertaining that my dry recitation of the law concerning hybrid representation.  Lawyer files appeal for his client.  Lawyer then files opening brief.  Counsel for the appellee then drafts opposition brief. The appellant (not his lawyer) writes letter to Appellate Court saying the brief his lawyer filed contains mistakes and does not make the arguments that he (the appellant) wanted to make.  Appellate Court lets appellant file pro se appearance, withdraw his lawyer’s brief and file a new brief on his own. However, appellant’s lawyer still has appearance in the case (hence hybrid representation).  So now opposing counsel has to write a new opposition brief in response to the brief filed by the appellant personally.  And who knows who will argue the argue case for the appellant.  The lawyer?  The client?  Both?

I’m sorry, but this situation is unacceptable.  If a person wants to appear pro se, fine.  If a person wants to have a lawyer represent him, fine.  But a person should not be allowed to have a lawyer represent him AND appear pro se as well, AND challenge his own lawyer’s legal filings, AND then file his own pleadings and briefs, thereby forcing opposing counsel to fight the litigation on multiple fronts, at additional expense for his client.

Now, the law.  In the criminal context, Connecticut law provides that “[t]he right to counsel and the right to self-representation present mutually exclusive alternatives.  A criminal defendant has a constitutionally protected interest in each, but since the two rights cannot be exercised simultaneously, a defendant must choose between them.”  State v. Jordan, 305 Conn. 1, 13 (2012).  In the only civil case in which the Connecticut Supreme Court addressed the issue of hybrid representation, it imposed the same “either or” choice.  See Cersosimo v. Cersosimo, 188 Conn. 385, 393 (1982) (“It is a well-settled principle of law that a party to a civil action may appear either pro se or through counsel.”) (emphasis supplied).

Notwithstanding the clarity of the appellate authority in Connecticut, some trial courts have held that Practice Book § 3-8 allows hybrid representation in civil cases.  E.g., Blinkoff v. O&G Industries, Inc., 2006 WL 1149158, 1 (Conn.Super. 2006) (citing cases).  (Practice Book § 3-8, entitled “Appearance for Represented Party,” provides: “Whenever an attorney files an appearance for a party, or the party files an appearance for himself or herself, and there is already an appearance of an attorney or party on file for that party, the attorney or party filing the new appearance shall state thereon whether such appearance is in place of or in addition to the appearance or appearances already on file. The provisions of this section regarding parties filing appearances for themselves do not apply to criminal cases.”)

Even the cited cases hold, however, that a trial court should be reluctant to permit such representation.  “The weight of authority in Connecticut, as well as in federal court, suggests that a litigant may either represent himself or be represented by an attorney unless the trial court, in its discretion, deems that hybrid representation would serve the interests of justice.”  Rhea v. Uhry, 2005 WL 1331801, 2 (Conn.Super. 2005).

I respectfully disagree with the trial courts that have interpreted Practice Book § 3-8 to permit hybrid representation.  Reasonably interpreted in light of the strong constitutional and common law history rejecting the right to hybrid representation, § 3-8 allows a party to file a pro se appearance “in lieu of,” but not “in addition to” an attorney, and does not allow an attorney to file an “in addition to” appearance where a party already has a pro se appearance.

In the interests of complete candor, I must add that I made these very arguments last year in a motion challenging a hybrid-representation situation in the Appellate Court.  The court denied my motion without prejudice, and without opinion.  Nevertheless, I believe that the Superior and Supreme Court rules committees should examine the question of hybrid representation in civil cases closely.