In the case of Ernest C. Roe, Warden v. Lucio Flores-Ortega in 1999, the U.S Supreme Court was tasked with determining whether an attorney's failure to file a notice of appeal without his client's explicit request constituted ineffective assistance of counsel under the Sixth Amendment. The court held that it did not automatically constitute ineffective assistance if there were no specific instructions from the defendant to do so. However, they also ruled that an attorney should consult with their client about an appeal when there is reason to think either (1) a rational defendant would want to appeal or (2) this particular defendant reasonably demonstrated interest in appealing.

In the dissenting opinion for Ernest C. Roe, Warden v. Lucio Flores-Ortega, Justice Scalia argued that the majority's decision was inconsistent with previous rulings and unnecessarily complicated matters by introducing a new standard of "reasonableness" in determining whether counsel should have consulted with their client about an appeal. He contended that this would lead to more litigation as defendants could argue they were not adequately informed about potential appeals. Instead, he believed that unless a defendant specifically instructs his lawyer to file an appeal or there is reason to think either (1) that the defendant reasonably demonstrated interest in appealing or (2) that a rational defendant would want to appeal because there are nonfrivolous grounds for doing so, then failure of defense counsel to consult does not constitute ineffective assistance.