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

• Date: 20 September 2006
• Author: Ziemer, David
• Published date: 20 September 2006
• 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...