¶ 1. In each of these appeals from a termination-of-parental-rights judgment, appointed counsel for appellant parent has moved to withdraw on the ground that continued representation is barred by Rule 3.1 of the Vermont Rules of Professional Conduct. The rule provides, in pertinent part, as follows: “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.” We requested and received briefing from counsel, as well as from the Attorney General and Defender General, to address the circumstances, if any, in which such a- motion should be granted.
¶ 2. Appointed counsel is the same in each of these appeals, and the motions are identical, as well, arguing — as noted — that continued representation is ethically precluded by Rule 3.1. In his memorandum in support of the motions, counsel also relies on Vermont Rule of Civil Procedure
¶ 3. The views of the Defender General are largely in accord with those of appointed counsel, although the Defender General observes that his office would be “hard pressed to find” alternative counsel, who would likely reach the same conclusion in any event, thus resulting in unnecessary delay. The Defender General recognizes that other courts in these circumstances have ordered counsel to file an Anders brief, based on the U.S. Supreme Court’s decision in Anders v. California,
¶ 4. The Attorney General, for his part, opposes the motions to withdraw, arguing that the significant interests at stake in a termination proceeding require continued representation of a parent on appeal “even if, in a rare case, counsel may be advancing an argument that does not satisfy Rule of Professional Conduct 3.1.” The Attorney General relies, as well, on the importance of expediting such appeals; he notes that entertaining withdrawal motions will invariably result in delay and that granting them could produce either protracted pro se litigation or potential collateral challenges based on the lack of representation.
¶ 5. While this Court is appreciative of the difficult and often thankless work undertaken by appointed counsel in termination-of-parental-rights appeals, we nevertheless conclude that the motions to withdraw must be denied. Although the U.S. Supreme Court has not recognized an absolute constitutional right to counsel for indigent parents in termination proceedings, it has acknowledged that a parent’s right to the custody, companionship, and care of his or her children is an important interest warranting due process protection, that the interest in a fair and accurate termination decision is “a commanding one,” and consequen.1y that the complexity of the proceeding and the “incapacity of the uncounseled parent” may, in a given case, make the risk of an erroneous
¶ 6. The same concerns that underlie our appointment policy in such matters necessarily inform our consideration of a motion to withdraw. Parents who are extended the right to appointed counsel in “the interests of justice” at trial must be equally assured of meaningful profession.1 assistance on appeal. With the aid of court-appointed counsel, the prosecution of an appeal serves the same important goals — shared by the State and the parent alike — of protecting the parent-child relationship and ensuring a fair and accurate decision that termination of parental rights is in the child’s best interests. Allowing the withdrawal of appointed counsel — whatever the relative merits of the underlying termination order — would clearly undermine these goals. We must therefore con.1ude that, absent client consent or other compelling circumstances, withdrawal of appointed appellate counsel in a termination-of-parental-rights proceeding will not be permitted.
¶ 7. We note that other courts have reached a similar conclusion. In A.L.L. v. People,
¶ 8. While this approach may, in the rare case, require appointed counsel to argue a frivolous claim, the risk is small. Contrary to counsel’s suggestion, the assertion of a claim that an attorney believes to be without merit or lacking any meaningful chance of success does not render an appeal “frivolous” or unethical. As the official comment to Rule 3.1 explains, an argument “is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail.” V.R.Pr.C. 3.1 cmt. [2]; see also A.L.L.,
¶ 9. Indeed, even where a meritorious claim is impossible to assert in good faith, the value of the advocate’s role to the client, the court, and the system as a whole is realized in this context simply through a conscientious effort to “navigate the appellate process” on the client’s behalf and communicate the client’s “impressions of injustice,” even if unpersuasive. Id. at 1060-61; see also Commonwealth v. Moffett,
¶ 10. A final question remains as to whether the circumstances in In re S.C. warrant an exception to the general rule precluding withdrawal. In his cover letter to the Court, appointed counsel represented that he had not sent a copy of the withdrawal motion to his client, S.C.’s mother, because he did not have her address, and his attempts to reach her by telephone had failed. Consequen.1y, we requested briefing on “the effect, if any, of counsel’s inability to contact the client.” Counsel did not, however, rely on his inability to communicate with the client in support of his motion to withdraw. Moreover, counsel has acknowledged in his follow-up memorandum that “communications with the client are not necessary to prosecute” the appeal “since it is based solely on the existing lower court record.” Accordin.1y, we need not here consider
The motion to withdraw by appointed counsel in each of these matters is denied.
Notes
As explained below, we also requested briefing in In re S.C. on the effect, if any, of counsel’s inability to contact the client.