Appointed appellate counsel may not withdraw because appeal lacks merit. "Anders" procedure rejected.

In re S.C., Juvenile 2014 VT 7 (10-Jan-2014)

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.

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.

Professional Responsibility; actual and implied bias. Lawyer who had adopted child from DCF had no actual or implied personal-interest conflict of interest that precluded representing client adverse to DCF.

In re K.F. , 2013 VT 39 (07-Jun-2013)(Robinson, J.) 
Father appeals the termination of his parental rights on the grounds that the trial court erred in denying his motion for replacement counsel because his lawyer had a conflict of interest We affirm.

According to father, his lawyer’s prior adoption of a child made the lawyer sympathetic to DCF and unable to provide zealous representation to father, creating a “personal interest” conflict that mandated her removal. Counsel had not represented DCF in the past and had no current or past relationship to DCF beyond counsel’s adoption five years previously of a child who had been in DCF custody. This created no inherent bias that would prevent counsel from adequately representing father, and the findings shown no actual bias.

Vermont Rule of Professional Conduct 1.7. deals with a lawyer’s obligation to avoid concurrent conflicts of interest, including not representing a client when there is a “significant risk” that the representation is “materially limited . . . by a personal interest of the lawyer.” V.R.Pr.C. 1.7(a)(2). We have held that a judge who was an adoptive parent is not disqualified from adjudicating whether adoptees were entitled to disclosure of adoption information. In re Margaret Susan P., 169 Vt. 252, 733 A.2d 38 (1999). We explained “[personal and family circumstances are [not] appropriate considerations on which to presume bias or partiality.” Id. at 256-57, 733 A.2d at 42.

Similarly, here, the simple fact of counsel’s family circumstances without any showing of a current connection to DCF or this case is insufficient reason to presume counsel’s inability to represent father. Moreover, the record supports the trial court’s findings rejecting father’s suggestion that his lawyer’s lacked any zeal in representing him. The court did not abuse its discretion in denying father replacement counsel on this basis.