Background
In November 2022, a Richland County trial court appointed Darin Lynn Avery—a solo practitioner admitted to the Ohio bar in 2009—as appellate counsel for John Mack, who had just been convicted of aggravated murder and numerous related felonies and sentenced to life in prison without the possibility of parole. The case was widely described as one of the most complex criminal matters in Richland County history, with a trial transcript alone of approximately 4,000 pages and three attorneys having spent roughly a year trying the case. Experienced trial counsel had asked the court to assign the appeal to the Office of the Ohio Public Defender rather than a single attorney, but the court declined.
Avery took the appointment despite serious financial concerns, filing a motion early in the representation asking the Fifth District Court of Appeals to pre-approve extraordinary fees and guarantee the number of extensions he would receive. When the court denied that motion and told Avery he could withdraw by March 17, 2023, he did not. Over the ensuing months, he obtained five extensions of time without informing Mack of any delay, went nearly seven months without contacting his client at all, and ultimately filed the appellate brief five days after a final “no further extensions” deadline. The brief contained four assignments of error—the fourth being that Avery himself had provided ineffective assistance of appellate counsel, conceding that he had not reviewed significant portions of the record and had “probably missed several valuable and possibly meritorious assignments of error.” Mack did not learn the brief had been filed until he contacted Avery nearly three months later. The State moved to remove Avery; the court of appeals did so in January 2024 and appointed OPD, which ultimately filed a brief raising the same issues Avery had identified.
Disciplinary counsel filed a complaint in December 2024 alleging four rule violations. A three-member panel of the Board of Professional Conduct heard the matter, found three violations proved by clear and convincing evidence, dismissed a fourth (failure to act with reasonable diligence under Prof.Cond.R. 1.3), and recommended a public reprimand. The full board adopted the panel’s findings and additionally recommended that Avery pay the costs of the proceedings. Avery filed three objections to the board’s report.
The Court’s Holding
The Supreme Court of Ohio overruled all three of Avery’s objections, adopted the board’s findings of misconduct, publicly reprimanded Avery, and ordered him to pay the costs of the disciplinary proceedings. The court found by clear and convincing evidence that Avery violated Prof.Cond.R. 1.4(a)(2) (duty to reasonably consult with a client about the means of achieving the client’s objectives) and 1.4(a)(3) (duty to keep a client reasonably informed about the status of a matter), as well as Prof.Cond.R. 8.4(d) (conduct prejudicial to the administration of justice) in two distinct respects: filing Mack’s appellate brief late and prematurely raising his own ineffective assistance as an assignment of error in Mack’s direct appeal.
On the Rule 8.4(d) violations, the court rejected Avery’s argument that raising his own ineffectiveness was “incumbent” on him regardless of consequences. The court reaffirmed that appellate counsel cannot realistically be expected to argue their own ineffectiveness, and that App.R. 26(B) already provides a specific post-appeal mechanism for defendants to raise such claims. By injecting the issue into the direct appeal prematurely—and without the briefing App.R. 26(B) requires—Avery created an unresolvable procedural conundrum for the Fifth District that ultimately forced the appointment of new counsel and caused a delay of more than 230 days. The court also declined to excuse the late filing simply because Avery sought and received leave to file instanter, citing prior cases finding that procedural delays are prejudicial to the administration of justice even when they are ultimately excused.
On sanctions, the court agreed with the board that Avery had not acted with a dishonest or selfish motive—his transparency about reviewing an incomplete record was itself what surfaced the disciplinary matter—and that five mitigating factors (clean record, no selfish motive, good-faith efforts to assist OPD after removal, cooperation with proceedings, and the significant financial penalty already suffered in receiving only $686 of the $10,171 in fees he requested) outweighed the single aggravating factor of multiple offenses. Consistent with precedent in comparable cases, a public reprimand was the appropriate sanction.
Key Takeaways
- Appellate counsel appointed to represent a criminal defendant has an affirmative duty under Prof.Cond.R. 1.4 to consult with and keep the client informed throughout the appeal—including about extension requests and the contents of any brief before it is filed—and a gap of seven months without any client contact will support a rule violation even when communication with incarcerated clients is difficult.
- Raising one’s own ineffective assistance as an assignment of error in a client’s direct criminal appeal is improper; App.R. 26(B) exists precisely to handle such claims through a separate post-appeal process, and injecting them prematurely constitutes conduct prejudicial to the administration of justice under Prof.Cond.R. 8.4(d).
- Filing delays are prejudicial to the administration of justice under Prof.Cond.R. 8.4(d) even when the court ultimately excuses them; the disciplinary assessment is made based on facts and circumstances as they existed at the time of the conduct, not in hindsight.
- Systemic contributing factors—such as an unrealistic court-appointed fee structure or a trial court’s refusal to assign a complex appeal to a better-resourced office—do not excuse an attorney’s own rule violations, though they may inform the sanction analysis.
Why It Matters
This decision reinforces that court-appointed criminal defense attorneys owe their clients the same substantive communication duties as retained counsel, even when the financial compensation is inadequate and the record is unusually large. An attorney who accepts an appointment is bound by the fee schedule; if the compensation is unworkable, the proper course is to seek withdrawal—not to continue while deprioritizing the client’s case and then disclose the deficiency through the brief itself. The decision signals that Ohio’s disciplinary system will hold appointed counsel accountable for client-communication failures even in structurally difficult appointments.
The opinion also provides useful doctrinal clarity on the premature-ineffectiveness-of-counsel issue. By squarely holding that appellate counsel may not raise their own ineffectiveness as a direct-appeal assignment of error—and that doing so violates Rule 8.4(d)—the court draws a firm procedural line that protects both the integrity of direct appeals and defendants’ rights under the App.R. 26(B) reopening process. Defense practitioners handling complex appointed appeals should take note: financial pressures and case complexity may factor into the sanction calculus, but they will not shield an attorney from discipline for abandoning the client’s communication rights or misusing the appellate process.