Monday, April 21, 2014

Give it a Go

In re. S.C., 2014 VT 7.

By Nicole Killoran

Attorneys have a reputation for being creative boundary-pushers who will stop at almost nothing to serve their clients. This is at least in part because attorneys are both trained and ethically obligated to make the best argument to advance a client’s interests, even if the chance of success is microscopic.

But sometimes even vague legislative drafting, obsolete statutes, and obscure rules and reasoning hidden in unquestioned 19th-century case-law—all fodder for making the best losing argument—can’t change a client’s impossible set of facts. At that point, hired attorneys have the option of asking to withdraw from representation rather than fighting a losing battle.

Today’s SCOV opinion answers the question of whether a state-appointed attorney representing a parent whose parental rights have been terminated can withdraw when he or she thinks there is no point in pursuing an appeal of the termination decision. In the two separate cases consolidated into this appeal, the State appointed an attorney from the Defender General’s office to represent parents at risk of losing their kids. In each case, the parents lost, and their parental rights were terminated. In each case, the attorneys determined that pigs would likely sprout little porcine wings before the parents would succeed on an appeal of the termination decision.

Seeing a steep cliff fast-approaching on the appeal, the attorneys sought to withdraw from representation rather than bring the appeal, citing two nearly identical grounds. Both Rule 3.1 of the Vermont Rules of Professional Conduct, and Rule 11(b)(2) of the Vermont Rules of Civil Procedure, forbid an attorney from making frivolous arguments to the Court.

These rules provide an exception for an attorney making a good-faith argument for extension, modification, or reversal of existing law, or new law. In other words, to keep in line with the rules of ethics and of civil procedure, the attorney has to have some basis in law, or in the facts of the case, that justifies the argument. The attorneys claimed that any arguments that could be made would be frivolous, and that therefore withdrawal was mandatory. The SCOV was asked to weigh in; in turn, the SCOV asked the Defender General to brief the issue.

Other states that have considered this issue have fallen back on a solution the U.S. Supreme Court created in the criminal context where defendants have a constitutional right to an attorney. When the no-chance-in-hell-on-appeal argument was raised in Anders v. California, the Supreme Court directed defense counsel to file a brief on both why an appeal would be frivolous and how it might possibly succeed, and then let the court decide whether it agreed and would let him out. Vermont’s Defender General points out that this puts an appointed attorney in an ethical knot—he must simultaneously advance his client’s interests and yet pick apart the client’s case. Awkward!

Vermont’s Attorney General argues that, whatever the conundrum, or losing case, a parent’s interests in a termination proceeding are too important to allow withdrawal. The SCOV agrees.

The U.S. Supreme Court recognizes the fundamental nature of a parent’s rights to raise his or her children, and the associated importance of providing counsel in complex proceedings where termination of parental rights are at stake. Vermont law provides for appointed counsel in termination proceedings if the court thinks it’s necessary to protect the parents’, or the child’s, rights. And one of the SCOV’s administrative orders dictates that a termination case, and an appeal from a termination decision, is one proceeding for appointed-counsel purposes.

The goal of providing appointed counsel for the parents in termination cases is to make sure the parents’ rights aren’t taken away unnecessarily. If an appointed attorney is allowed to withdraw rather than appeal a decision terminating parental rights, regardless of whether the client’s case is terrible and bound for failure, that goal would be undermined. For this reason, the SCOV concludes, unless a client consents or there are “other compelling circumstances,” appointed counsel cannot withdraw when the case gets to the appeal stage.

The SCOV gives a nod to the Defender General’s concern that the appointed attorney could find himself an upside-down awkward turtle as a result of this decision, but it believes the risk to be small. Even if the attorney thinks the argument will fail, he can still go ahead and make it as long as he’s not lying to the court. Having an attorney to even just “communicate the client’s ‘impressions of injustice’” is important enough to prevent withdrawal. It may not even violate the rules of ethics against frivolous arguments, if the court won’t let you withdraw. Suck it up, make the argument, and let the court decide, says the SCOV.

Before closing, the SCOV wraps up one final question in this consolidated case--whether an exception can be made to the new rule where the Defender General can’t contact the parents. The attorney didn’t list this as a reason not to appeal in his motion to withdraw, so the SCOV brushes aside the argument, though it does note that you can bring the appeal without talking to your client--all you need is the record from the trial court below and your wits.

The law frequently makes little sense, even to those expected to understand its contours and take advantage of its blank spots. Today’s decision teaches appointed counsel that even if hell freezes over, he or she’d better keep on feebly waving that blow torch.

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