Formal Opinion No. 114—responsibilities of Respondent Parents' Attorneys in Dependency and Neglect Proceedings; Adopted October 14, 2006; Revised June 19, 2010
| Jurisdiction | Colorado,United States |
| Citation | Vol. 43 No. 11 Pg. 17 |
| Pages | 17 |
| Publication year | 2014 |
In and Around the Bar
CBA Ethics Committee
Formal Opinion No. 114—Responsibilities of Respondent Parents' Attorneys in Dependency and Neglect Proceedings; Adopted October 14, 2006; Revised June 19, 2010
This opinion addresses attorneys' ethical responsibilities to clients in the dependency and neglect[1] 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 be en 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.
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.[2] With a few exceptions, the attorney decides the tactics of hearings and trials.[3]
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 t he representation. The writing need not be formal and need not be signed by the client.[4] 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.[5] In fact, the client with an appointed attorney must agree, after consultation, to the attorney being paid by the state,[6] though the circumstances of the unique court-appointed, third-party-paid representation generally assure the client's implicit agreement.[7]
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,[8] 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.[9] 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 standard or individual writing, appointed attorneys should remember that to a certain extent the nature of this unusual attorney-client relationship is fixed. Clients with appointed attorneys cannot initially negotiate the terms of the representation prior to selecting an attorney, nor in any case choose whom to select and, thus, the attorney may not unreasonably limit the terms of the...
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