WI COS holds attorney filing of no-merit brief is violation of rules of professional responsibility.

• Author: Ziemer, David

Byline: David Ziemer

It would violate the rules of professional responsibility for an attorney to file a no-merit brief against the client's express instructions, the Wisconsin Court of Appeals held on Sept. 13.

As a result, the court declined to reinstate the client's appellate rights, even though the attorney filed only a motion to withdraw unaccompanied by a no-merit brief.

Perry Van Hout pleaded guilty in 1995 to two counts of sexual contact with a child under 13. Margaret Maroney was appointed to represent Van Hout on appeal by the State Public Defender.

Maroney concluded that there were no meritorious issues for appeal, but Van Hout wanted to appeal. Van Hout would not consent to proceeding pro se or retaining counsel on his own, nor would he consent to Maroney's filing a no-merit brief, or to her closing his case file without action.

In 1996, Maroney filed a motion to withdraw, stating that she had explained Van Hout's options, and that he had declined them all, including a no-merit report. Van Hout did not respond, having refused to accept delivery of the motion.

The court of appeals granted the motion to withdraw, concluding that Maroney discharged her obligation to Van Hout by informing him of his options, and that Van Hout declined to exercise any of them. The court concluded that Van Hout's failure to object was a concession that he wanted counsel to withdraw and that he would proceed pro se.

In 1997, Van Hout moved the court pro se to reinstate his appeal rights, but the court of appeals denied the motion.

In 2000, Van Hout filed a petitoin pursuant to State v. Knight, 168 Wis.2d 509, 484 N.W.2d 540 (1992), claiming that the court should have required Maroney to file a no-merit report. The court of appeals denied this petition.

Van Hout, now represented by counsel, again filed a Knight petition, arguing that Van Hout was denied an appeal and assistance of counsel, contending that, pursuant to Speights v. Frank, 361 F.3d 962, 964 (7th Cir. 2004), counsel is required to file a no-merit report whenever counsel deems an appeal without merit, and the client declines to close the file.

The court of appeals denied the petition in a per curiam opinion.

The court held that an attorney may not file a no-merit report, when the client has been advised of his options, and directed the attorney not to do so, citing its opinion in State v. Divanovic, 200 Wis.2d 210, 546 N.W.2d 501 (Ct.App.1996).

In Divanovic, the court cited SCR 20:1.2 -...