What are a Colorado court-appointed attorney's ethical duties to a respondent parent in a dependency and neglect case who stops appearing or communicating, and must the lawyer appeal a termination of parental rights on request?

Plain-English summary

Opinion 114 (adopted October 14, 2006; modified June 19, 2010) addresses the ethical obligations of attorneys who represent respondent parents in dependency and neglect and other juvenile proceedings. The Committee notes that many of these lawyers are appointed and paid by the state, represent unsophisticated clients, and face unusual challenges, and confirms that the Rules of Professional Conduct apply to them in full.

On communicating the representation, the opinion concludes that Rule 1.5(b) requires the lawyer to communicate the basis of the fee, and nothing excludes appointed or third-party-paid representation; the client must agree, after consultation, to the lawyer being paid by the state under Rule 1.8(f). The Committee recommends an early writing (which need not be formal or signed) that communicates the no-cost nature of the appointment and may also describe how the lawyer will proceed if the client stops appearing or communicating, for example by following the client's most recent instructions or by exercising the lawyer's independent professional judgment. Because an appointed client cannot negotiate the terms or choose the lawyer, the opinion cautions that the lawyer may not unreasonably limit the representation; under Rule 1.2(c) the lawyer ordinarily could not limit the general nature of the defense or the client's lawful objectives.

On an uncooperative or absent client, the opinion concludes the lawyer may not decline to advocate simply because the client does not attend hearings or provide direction; the duties of competence (Rule 1.1) and to abide by the client's objectives (Rule 1.2) continue, and the lawyer may present witnesses and cross-examine. To avoid acting without input, the lawyer may advise the client at the outset that the lawyer will exercise independent professional judgment on trial strategy if the client stops communicating. Consistent with the comment to Rule 1.2 (the lawyer assumes responsibility for technical and legal tactical issues), the opinion concludes the lawyer may agree to, or not object to, presentation of evidence by offers of proof when the client is absent, treating that as a tactical choice within the lawyer's province.

On appeals, the opinion concludes that when a respondent parent asks the appointed lawyer to appeal a judgment terminating parental rights, the lawyer must file a timely notice of appeal regardless of the likely success, citing Rule 1.2(a)'s duty to abide by the client's decisions and the Colorado Supreme Court's decision in People in Interest of C.Z. The opinion (as modified in 2010 to track C.Z.) explains that the lawyer does not face an ethical dilemma under Rule 3.1 because, so long as the lawyer does not misstate the facts or controlling law, the lawyer is free to present the client's arguments and the client's desire to prevail. The lawyer may still discuss the merits and likelihood of success with the client, and if the client, after consultation, consents not to appeal, no notice of appeal is required.

In practice

Under the Colorado rules as they stood at the time of the opinion (as modified in 2010 following People in Interest of C.Z.), the analysis turns on the special features of appointed juvenile representation. The opinion holds that the lawyer must communicate the no-cost appointment and the nature of the representation in writing (Rules 1.5(b), 1.4, 1.8(f)); must keep advocating competently even when the client disappears (Rules 1.1, 1.2), using independent judgment on tactics such as offers of proof; may not unreasonably limit the scope of an appointed representation; and must file a requested notice of appeal from a termination of parental rights without regard to merit (Rule 1.2(a)), unless the client, after consultation, agrees not to appeal. Because the rules, the Children's Code, and the appellate deadlines (then C.A.R. 3.4) may have changed since 2006, confirm Colorado's current rules and rules of appellate procedure before relying on the specifics.

Common questions

Q: My client in a dependency and neglect case stopped showing up. Can I stop advocating for them?

A: No. The opinion concludes the lawyer may not decline to advocate simply because the client does not attend hearings or give direction; the duties of competence (Rule 1.1) and to pursue the client's objectives (Rule 1.2) continue.

Q: Do I have to put the appointment terms in writing for an appointed client?

A: The opinion concludes the lawyer must communicate, in an early writing that need not be formal or signed, that the lawyer was appointed to represent the client without cost, grounding the duty in Rule 1.5(b); the writing may also explain how the lawyer will proceed if the client stops communicating.

Q: Can I agree to offers of proof when my client is not present?

A: Yes. The opinion treats agreeing to or not objecting to presentation of evidence by offers of proof as a tactical decision within the lawyer's province under the comment to Rule 1.2, permissible even without recent client direction, though the lawyer should make clear the lawyer is not stipulating to the truth of the other side's offers.

Q: Must I appeal a termination of parental rights even if I think the appeal is frivolous?

A: Yes, if the client requests it. The opinion concludes that, under Rule 1.2(a) and People in Interest of C.Z., the appointed lawyer must file a timely notice of appeal regardless of the likely success; the lawyer may discuss the merits first, and need not appeal only if the client, after consultation, consents not to.

Background and rules framework

The opinion interprets Colo. RPC 1.1 (competence), 1.2 and 1.2(c) (scope and objectives of representation; limiting representation), 1.4 (communication), 1.5(b) (communicating the basis of the fee), 1.8(f) (third-party payment of fees), 3.1 (meritorious claims), and 6.2(c) (accepting court appointments), in the context of court-appointed representation of respondent parents. It relies on People v. Schultheis for the lawyer's control of tactical decisions, and on People in Interest of C.Z. (which, per footnote 18, disapproved the Committee's original view that counsel could withdraw after filing if the appeal lacked merit) for the duty to file a requested appeal.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 1.1 / Model Rule 1.1 (competence)
• Colo. RPC 1.2, 1.2(c) / Model Rule 1.2 (scope and objectives; limiting representation)
• Colo. RPC 1.4 / Model Rule 1.4 (communication)
• Colo. RPC 1.5(b) / Model Rule 1.5 (communicating the basis of the fee)
• Colo. RPC 1.8(f) / Model Rule 1.8 (compensation from a third party)
• Colo. RPC 3.1 / Model Rule 3.1 (meritorious claims and contentions)
• Colo. RPC 6.2(c) / Model Rule 6.2 (accepting appointments)

Cases:

• People in Interest of C.Z., 226 P.3d 1054 (Colo. 2010), appointed counsel must present the client's appellate arguments and may not file an Anders brief in a dependency and neglect appeal
• People v. Schultheis, 638 P.2d 8 (Colo. 1981), strategic and tactical decisions are the lawyer's province after consultation
• Strickland v. Washington, 466 U.S. 668 (1984), standard for ineffective assistance of counsel
• Roe v. Flores-Ortega, 528 U.S. 470 (2000), failure to file a requested notice of appeal supports an ineffective-assistance claim

See also

• CBA Formal Op. 128: The Missing Client
• CBA Formal Op. 126: Diminished-Capacity Clients
• ABA Formal Op. 472: Limited-Scope Clients and Contact

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/repository/ethicsOpinions/FormalEthicsOpinion_114_2011.pdf