United States of America, Plaintiff-appellee, v. Leroy A. Schubert, Defendant-appellant, 103 F.3d 143 (9th Cir. 1996)

MEMORANDUM^* 

Schubert notified his retained counsel, Robert Hooker, on June 3, 1992, that he was discharged and that he (Schubert) would proceed pro per. Hooker on that date was counsel of record and remained counsel of record until August 10, 1992.

The undisputed facts are that Hooker told Schubert, in response to a question regarding appeal, "I don't know ... You should file notice with both courts." Schubert did nothing.

As counsel of record, Hooker received notice on July 28, 1992, that an order had been entered in Schubert's case on July 26, 1992. Schubert did not learn of the order until after time for filing notice of appeal had expired. Hooker knew that Schubert would not receive timely notice through regular mail, but he simply mailed the order to Schubert. Hooker neither (1) filed notice of appeal nor (2) telephoned Schubert to advise him that he (Schubert) must do so.

We create no new rights. We hold only that counsel of record must act appropriately until notice of withdrawal and substitution is a matter of record. To do otherwise is to abandon a client when the court neither knows nor has reason to know that notice to counsel of record is not notice to the client.

We therefore reverse the finding of effective assistance. The district court should now consider the merits of Schubert's appeal. We refer the court to United States v. Schubert, 957 F.2d 694 (9th Cir. 1992), and United States v. Castro-Cervantes, 927 F.2d 1079 (9th Cir. 1990).

REVERSED and REMANDED.