Monday, December 28, 2009

No Details Required

An attorney appointed to represent a client in a post-conviction proceeding may withdraw from the matter based on her assertion that continued representation would involve violation of disciplinary rules without filing an Anders-type pleading that details the problem, according to a 3-2 majority opinion of the Vermont Supreme Court. The motion to withdraw had cited rules relating to frivolous claims ans candor to the court. The court holds:

An Anders-type explanation justifying counsel’s withdrawal is not required in the PCR context.  The withdrawal prerequisites called for in Anders are designed to vindicate a defendant’s constitutional right to counsel, 386 U.S. at 744, and, as the United States Supreme Court has recognized, a petitioner has no constitutional right to counsel in civil PCR proceedings.  See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (rejecting notion that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions).  Absent an underlying constitutional right to counsel in state post-conviction proceedings, there is “no constitutional right to insist on the Anders procedures which were designed solely to protect that underlying constitutional right.”  Id. (“Anders established a prophylactic framework that is relevant when, and only when, a litigant has a previously established constitutional right to counsel.”); see also People v. Breaman, 939 P.2d 1348, 1351 n.2 (Colo. 1997) (en banc) (citing FinleyAnders brief). 

Rather than being grounded in the constitution, petitioner’s right to counsel is created, defined, and limited by statute.  See In re Gould, 2004 VT 46, ¶ 13, 177 Vt. 7, 852 A.2d 632 (noting that Public Defender Act sets forth statutory right to counsel in PCR proceedings even though providing such assistance is not constitutionally compelled).  Before 2004, the PDA guaranteed an indigent litigant the right to representation in any post-conviction proceeding “that . . . the needy person considers appropriate.”  13 V.S.A. § 5233(a)(3) (1998) (enacted 1971, No. 161 (Adj. Sess.), § 6).  In light of this language, we held that the state was obligated to provide PCR counsel upon the litigant’s request, regardless of the merit of the claims raised in the PCR or the fact that representation was not constitutionally compelled.  Gould, 2004 VT 46, ¶ 13.

There are two dissents. From Associate Justice Johnson:

To provide petitioner with competent and effective assistance of counsel and to preserve this Court’s role as protector of his right to counsel, this Court should deny counsel’s motion to withdraw and require her to file a brief on petitioner’s behalf.  Neither the majority’s solution of rubber-stamping the attorney’s conclusion that the case lacks merit, nor Justice Dooley’s suggestion to require an Anders-type affidavit from counsel adequately resolves the conflict between indigent petitioner’s need for effective and zealous representation and counsel’s own professional obligation to refrain from bringing frivolous cases.  While I concur with the majority’s conclusion that an Anders-like procedure is not constitutionally required or particularly effective in protecting an indigent litigant’s rights, I cannot agree with the majority’s holding that assigned counsel may withdraw at any point in the course of representation based solely on counsel’s own, unreviewable conclusion that the case is not warranted by existing law or nonfrivolous argument.  The grave consequences of a post-conviction proceeding and the critical requirement of robust representation at this proceeding require more.  To solve this problem, I would instead require counsel, once appointed, to remain in the case and to advance her client’s claims notwithstanding that she deems them to be without merit.  Because I would deny counsel’s motion to withdraw, I dissent.

(Mike Frisch)


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