88 A.3d 1220
Vt.2014Background
- Appointed appellate counsel in two termination-of-parental-rights appeals moved to withdraw, citing V.R.Pr.C. 3.1 (prohibiting frivolous claims) and V.R.C.P. 11(b)(2).
- Counsel reviewed records and concluded no meritorious issues existed that could affect the results; sought withdrawal rather than file appellate briefs.
- Defender General agreed counsel faced an ethical dilemma but noted finding substitute counsel would likely cause delay and reach same conclusions; suggested Anders-style procedure is problematic.
- Attorney General opposed withdrawal, stressing the high stakes in termination proceedings and the need to avoid delay or unrepresented appeals.
- The Court requested briefing on whether withdrawal should be allowed and specifically asked, in one case, about counsel’s inability to contact his client; counsel did not rely on lack of contact as a basis to withdraw.
- The Court denied the motions, holding that appointed appellate counsel in termination cases generally may not withdraw absent client consent or compelling circumstances.
Issues
| Issue | Appellant's Argument | Respondent's Argument | Held |
|---|---|---|---|
| Whether appointed appellate counsel may withdraw under V.R.Pr.C. 3.1 when counsel deems appeal frivolous | Counsel: Rule 3.1 bars continued representation when no nonfrivolous basis exists; withdrawal is mandatory | AG: Termination appeals implicate fundamental parental interests; representation should continue despite counsel’s view of merits | Denied: Withdrawal generally not permitted absent client consent or compelling circumstances |
| Whether Anders-style procedure is required/appropriate | Counsel/Defender Gen.: Filing nothing further or withdrawing preferable to advancing frivolous claims; Anders problematic ethically | Defender Gen./AG: Anders places counsel in ethical bind; AG emphasizes avoiding delay and ensuring representation | Court: Does not adopt Anders mandate; counsel must continue representation and may present client’s positions in good faith |
| Whether asserting weak claims violates Rule 3.1 and Rule 3.3 (candor) | Counsel: Raising weak claims would be unethical under Rule 3.1 | Court/others: An argument need not be likely to prevail to be nonfrivolous; candor obligations still constrain false statements | Held: Raising good-faith arguments based on favorable facts/law is permissible; duty of candor remains |
| Whether inability to contact client justified withdrawal | Counsel: stated he lacked client address/failed phone attempts (cover letter) but did not rely on it for motion | Court/briefing: Court requested briefing; counsel said communication not necessary for record-based appeal | Not decided on the merits: Court declined to resolve whether inability to contact, after diligent efforts, would permit withdrawal in other circumstances |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (procedure where counsel who deems appeal frivolous files brief noting lack of meritorious issues and cites any arguable support)
- Lassiter v. Department of Social Services, 452 U.S. 18 (U.S. 1981) (parental rights are a significant liberty interest warranting due process consideration regarding appointment of counsel)
- A.L.L. v. People, 226 P.3d 1054 (Colo. 2010) (appointed appellate counsel in dependency appeals may not withdraw solely because they find appeal without merit)
- In re Care & Protection of Valerie, 529 N.E.2d 146 (Mass. 1988) (appellate counsel in care/protection cases should brief client’s contentions succinctly to minimize harm rather than withdraw)
- In re Hall, 664 P.2d 1245 (Wash. 1983) (absent client consent, withdrawal on appeal in child deprivation proceedings will not be permitted)
- Commonwealth v. Moffett, 418 N.E.2d 585 (Mass. 1981) (where client insists on pursuing unsupported argument, counsel should present it succinctly to do least harm)