PER
CURIAM.
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 violates the
prohibition of Rule 3.1 of the Vermont Rules of Professional Conduct against
bringing or defending a proceeding without a basis in law and fact for doing so
that is not frivolous. We conclude that, absent client consent, a motion to
withdraw by appointed appellate counsel in termination proceedings will
generally not be granted, and therefore deny the motions.
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. An argument is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail. Even an utter lack of merit does not render an appeal by right wholly frivolous.
A good faith argument may be predicated on whatever pertinent facts and controlling law are most favorable to the client and need not conclude with the lawyer’s assertion that his or her client is entitled to prevail. Rather than withdrawing or filing an Anders brief, appointed appellate counsel should present the contention succinctly in the brief in a way that will do the least harm to the client’s cause.
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. An argument is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail. Even an utter lack of merit does not render an appeal by right wholly frivolous.
A good faith argument may be predicated on whatever pertinent facts and controlling law are most favorable to the client and need not conclude with the lawyer’s assertion that his or her client is entitled to prevail. Rather than withdrawing or filing an Anders brief, appointed appellate counsel should present the contention succinctly in the brief in a way that will do the least harm to the client’s cause.
Note. Anders v.
California, 386 US 738 (1967) permitted a court-appointed attorney to withdraw
from the appeal of a criminal case because of a belief that the appeal was
frivolous, but only upon filing a brief outlining the case and identifying
potential grounds for appeal. See the various opinions discussing the "Anders" procedure in In
re Bailey, 2009 VT 122.
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