Cba Ethics Committee

• Jurisdiction: Colorado,United States
• Citation: Vol. 35 No. 12 Pg. 19
• Pages: 19
• Publication year: 2006

35 Colo.Law. 19 Colorado Lawyer 2006.

2006, December, Pg. 19. CBA Ethics Committee

The Colorado Lawyer
December 2006
Vol. 35, No. 12 [Page 19]

In and Around the Bar
CBA Ethics Committee

CBA Ethics Committee Formal Opinion 114:

Responsibilities of Respondent Parents' Attorneys in Dependency and Neglect Proceedings

Adopted October 14, 2006

Notwithstanding the copyright notice appearing in this publication, formal opinions of the Colorado Bar Association Ethics Committee may be reproduced in single or multiple copies: (1) by libraries for traditional multiple library use, including copies for reserve room use, extra copies for faculty-student dissemination and interlibrary use; (2) by legal practitioners for their own use and the use of members and associates of the firm or office in which they practice and (3) by individuals for classroom teaching purposes. All other copyright interests are expressly reserved, including without limitation, the right to prohibit copying for resale purposes.

This opinion addresses attorneys' ethical responsibilities to clients in the dependency and neglect(fn1) and other juvenile arenas. Many of these attorneys are appointed attorneys, paid by the state representing unsophisticated clients, and facing unusual challenges. Although it is clear that the Rules of Professional Conduct apply to respondent parents' attorneys, the Committee addresses the application of those rules to recurring dependency and neglect issues.

Issues

1. How does an appointed attorney pursue the client's objectives when the client fails to attend court hearings and provide direction to the attorney?

2. May an attorney provide a written statement advising the client that presentation of evidence is conditioned on the client's continued communication with the attorney and attendance at court hearings?

3. May the attorney stipulate to offers of proof or otherwise bind the client in the client's absence?

4. In a Title 19 dependency and neglect matter, is the respondent parent's attorney required to file a notice of appeal if an appeal under C.A.R. 3.4 is groundless or frivolous?

Summary of Opinion

Court-appointed attorneys must assure that there is a written communication to each new client that the attorney has been appointed to provide representation without cost to the client.

The attorney should communicate in writing the nature of the representation. That writing may outline what happens if the client doesn't come to court and doesn't communicate with the attorney. However, the attorney may not decline to advocate for the client simply because the client does not come to hearings or provide direction.

The attorney may agree to, or not object to, presentation of evidence by offers of proof if the client does not attend a hearing.

The attorney must file a notice of appeal from termination of parental rights upon request of the client even if the attorney believes the merits of the appeal are groundless or frivolous. However, once the notice of appeal has been filed, the attorney may seek leave of the appellate court to withdraw.

Analysis

There is no bright line in attorney-client representation that delineates how an attorney must represent his or her client at hearings or at trials. Each representation is different depending on the agreement of the client and attorney, or if there is no formal agreement, by the disclosure by the attorney to the client as to how the attorney will provide representation. Generally, the client determines trial scope and objectives.(fn2) With a few exceptions, the attorney decides the tactics of hearings and trials.(fn3)

Colorado Rule of Professional Conduct (Colo. RPC) 1.5(b) requires that the basis of the fee agreement shall be communicated to the client before commencing or within a reasonable time of commencing the representation. The writing need not be formal and need not be signed by the client.(fn4) There is nothing in the rule or its comments that excludes from this requirement either a pro bono fee agreement or payment by the state or other third party on behalf of the client.(fn5) In fact, the client with an appointed attorney must agree, after consultation, to the attorney being paid by the state,(fn6) though the circumstances of the unique court-appointed, third-party-paid representation generally assure the client's implicit agreement.(fn7)

Pursuing the Objectives of an Uncooperative Client

Unsophisticated clients, especially clients with appointed attorneys, may easily misunderstand the nature of the relationship and the nature of the fee. A writing early in an attorney-client relationship must at least briefly communicate the nature of the fee,(fn8) but also may present to the attorney the opportunity to detail the nature of the representation, and give the client something to refresh his or her memory at a later time.(fn9) When an attorney is appointed, there may not be a meeting of minds as to the client's expectations of the attorney. The client may have unreasonable expectations of the attorney.

One method to present the required writing, for attorneys who regularly take court appointments, may be to present to the client a standard form, which may be modified as necessary, and may be presented to the client at the time of appointment. Often, clients of attorneys practicing in these areas of the law are transient and difficult to reach. An immediate writing can outline for the remainder of the case what happens if the client doesn't come to court and doesn't communicate. The writing may state that, should the attorney not be in contact with the client, the attorney will follow the client's most recent instructions, or alternately may state that the attorney will use his or her best judgment in making decisions for the client.

In creating a...