Appellate Ethics

**This article was prepared and part of the materials for the March 2016 California Appellate Defense Counsel Conference. It explores some of the ethical challenges confronting appellate counsel representing parents and children in dependency matters.

Attorneys representing parents and children in the dependency trial court have well defined ethical obligations. See, for instance, the materials from the December 2015 presentation by John W. Lawrence, Esq. at Beyond the Bench in December 2015: Ethical Obligations of Counsel for Parents and Children in Dependency Cases. (http://www.courts.ca.gov/documents/BTB_23_5E_1.pdf.) The article focuses on competency, communication, and confidentiality of trial counsel and is worth reading by appellate counsel. Similarly, appointed appellate dependency counsel’s obligations mirror some of the ethical problems faced by appointed criminal appellate lawyers, as shown in the previous materials. However, appellate dependency counsel also have unique ethical problems. Three of those concerns are considered here:

First, does appellate dependency counsel have an ethical obligation to file a writ petition for ineffective assistance of trial counsel or is it sufficient to argue ineffective assistance as part of the appeal? (See In re N.F. (Cal. Ct. App., June 29, 2010, D055922) 2010 WL 2594747 and Kemper v. County of San Diego (2015) 242 Cal.App.4th 1075, as modified on denial of reh'g (Dec. 28, 2015), review filed (Jan. 14, 2016).

Second, what are the ethical implications when counsel takes a position on appeal that is different than the position taken by minor’s trial counsel (See In re Felicity S. (2014) 225 Cal.App.4th 1389, 1391, as modified (May 23, 2014), ordered not to be officially published (Aug. 20, 2014) and In re Felicity S. (Cal. Ct. App., Nov. 26, 2013, A137439) 2013 WL 6199269, at *10, as modified on denial of reh'g (Nov. 26, 2013), ordered not to be officially published (Nov. 26, 2013).)

Third, does appellate counsel have an ethical obligation to inform the court when he or she has had no contact with her client? (In re P.C. (2011) 198 Cal.App.4th 1533, reh’g granted, opinion not citeable (Sept. 28, 2011), vacated (Cal. Ct. App., Sept. 28, 2011, A130866)

After discussing these hypotheticals, this article will review a few other special situations that apply to appellate dependency counsel.

Hypothetical #1: When does appellate counsel have an ethical duty to file a writ petition for ineffective assistance of counsel?

See, In re N.F. (Cal. Ct. App., June 29, 2010, D055922) 2010 WL 2594747 and Kemper v. County of San Diego (2015) 242 Cal.App.4th 1075, as modified on denial of reh'g (Dec. 28, 2015), review filed (Jan. 14, 2016).

Mother was a 16-year-old minor living in Compton with her boyfriend at the time her infant daughter was removed from her care in San Diego while visiting the maternal grandmother. The petition was filed in San Diego. Mother was not present at the detention, jurisdiction, or dispositional hearings. Shortly thereafter, Mother contacted the social worker and a hearing was set one month later to appoint an attorney. Because the case was filed prior to January 1, 2009, the court was required to appoint a guardian ad litem for the mother at the initial hearing. (Former CCP §§ 372, subd. (a), 373; In re D.D. (2006) 144 Cal.App.4th 646, 653; In re A.C. (2008) 166 Cal.App.4th 146, 155.) However, at the hearing, Mother’s appointed counsel (Attorney #1) told the court that Mother didn’t need a GAL and no appointment was made.

During the reunification period, Mother was a considered a runaway, living in LA with her boyfriend and his parents, and refused to live with her parents in San Diego, who had drug problems. Mother minimally participated in services, visited her child only seven times out of 26 visits, and was pregnant again. The court terminated reunification services at the six month review hearing in February 2009 (Attorney #2). Mother filed a notice of intent to file a writ petition, but appointed counsel (Attorney #2) and his supervisor (Supervisor #3) declined to file it.

Meanwhile, Mother was arrested for burglary, made a dependent of the LA juvenile court, placed in foster care, and gave birth in April 2009. Mother’s case was transferred to another attorney in the same office (Attorney #4). After reviewing the file, Attorney #4 requested that Supervisor #3 transfer the case to an independent attorney, believing there had been substantial problems with the legal representation in the case. Supervisor #3 declined the transfer and told Attorney #4 to file a petition for modification instead.

In May 2009, Mother was doing well in foster care and filed a petition for modification requesting her child be returned to her. In August 2009, mother filed a second petition for modification seeking to dismiss the dependency and have the child returned because the court erred by failing to appoint a GAL at the detention hearing. After granting a hearing, the juvenile court found a GAL should  have been appointed for Mother and the error was not harmless. However, it denied the petition because the requested modification was not in the child’s best interests. The juvenile court also found Mother had shown changed circumstances but had not shown it was in the child’s best interests to be placed with her. Then it terminated parental rights.

On appeal, in addition to arguing the failure to appoint a GAL resulted in a miscarriage of justice, mother argued trial counsel was ineffective. Mother claimed trial counsel  (1) failed to challenge the jurisdictional findings under section 300, subdivision (g); (2) waived appointment of a guardian ad litem on her behalf; and (3) failed to raise these issues in a writ petition. Mother did not file a writ petition.

Did appellate counsel have an ethical duty to file a writ petition for ineffective assistance of counsel?

What are your ethical duties if the case was filed in the Third or Fifth District Court or Appeal and a petition to expand your appointment is denied?

On appeal, Mother’s IAC argument was rejected because the record did not affirmatively establish that counsel had no rational tactical purpose for the challenged act or omission. (In re N.F. (Cal. Ct. App., June 29, 2010, D055922) 2010 WL 2594747.) It also found there was no showing that the outcome, termination of parental rights, would have been different had counsel been effective.

While the case was pending on appeal, Mother filed a malpractice action against Attorneys #1 and #2, as well as Supervisor #3.

In the malpractice action, defendant’s motion for summary judgment was granted based on the collateral estoppel rules, holding that Kemper was precluded from relitigating the determination made by the N.F. court that Kemper's “parental rights were terminated as a result of her own actions, and not as a result of her attorneys' conduct.” The trial court also rejected Kemper's arguments that collateral estoppel does not apply because Kemper did not previously bring an ineffective assistance claim through a habeas corpus petition, and/or that Kemper's “new legal theories” preclude the collateral estoppel bar.

In Kemper v. County of San Diego (2015) 242 Cal.App.4th 1075, the appellate court held that collateral estoppel, which prevents relitigation of previously decided issues even if the second suit raises different causes of action, applied. The court said Kemper was asserting the same negligence grounds in the malpractice claim that she previously litigated in her ineffective assistance of counsel claim. It also said, “With respect to the failure to bring a habeas corpus petition after the termination of parental rights, Kemper did not allege that any of the defendant attorneys represented Kemper during posttermination proceedings and therefore they cannot be held responsible for actions taken after the termination judgment.” (Kemper, supra, 242 Cal.App.4th at p. 1090.)

Kemper argued that the principles of collateral estoppel did not apply because she was restricted to the record in the N.F. appeal. (Kemper, supra, 242 Cal.App.4th at p. 1091.) That argument was rejected:

Kemper did have a full and fair opportunity to litigate the causation (prejudice) issue. Kemper was represented by independent counsel in the N.F. appeal, who argued that the prior counsel's representation caused the termination judgment. If counsel had believed additional relevant evidence was available and necessary to prove the claim, counsel could have brought a habeas corpus petition. The courts have recognized that a habeas petition is the correct vehicle to raise an ineffective assistance of counsel claim in juvenile dependency cases where the record is unclear whether counsel had reasonable grounds for the challenged actions or nonactions. [Citations.] Kemper does not contend that her appellate counsel acted below the standard of care in making the decision not to bring a habeas petition, or that defendants De Soto, Kisiel, or Gulemi were in any way responsible for this decision.⁵ (Ibid.)

In footnote 5, the court stated:

Contrary to Kemper's assertion in a rehearing petition, we are not suggesting any new duty on an appellate counsel in a dependency action. Given the strict deadlines in juvenile dependency actions and the state's strong interest in expediting these proceedings, if an appellate counsel is aware of facts outside the record that would support an ineffective assistance of counsel claim, the counsel should advise the client of this fact and consider raising the issue by habeas corpus petition. If necessary, an appointed counsel may petition to expand his or her appointment. Kemper's citation to decisions in the criminal habeas context are unhelpful on this issue. (Kemper, supra, 242 Cal.App.4th at p. 1091.)

The court then explained that there was no exception to the collateral estoppel doctrine based on an analogy to the habeas corpus procedure in juvenile dependency cases because a habeas petition seeks to protect a parent’s fundamental liberty interest, which does not apply in a civil malpractice action. The habeas petition is brought as part of the dependency action, thus there is no collateral estoppel bar.

Kemper implies that there are very limited situations, if any, in which a malpractice action can be brought against a dependency attorney because the parent would need to prove “actual innocence,” which would mean there would need to be a prior finding of “no causation.” (Kemper, supra, 242 Cal.App.4th at p. 1096.)

Hypothetical #2: What are your ethical obligations when your client, the child, tells you that his wishes are different than trial counsel’s recommendations and arguments in the trial court? Do your ethical obligations change based on the age of the child?

You are appointed to represent a 16 year-old minor on appeal from a dispositional hearing where the minor is removed from her mother and placed in foster care with reunification services. The minor tells you that she wants to return home. After conferring with the minor and reviewing the record, you make an independent determination that the court erred when it removed the minor from her mother and it is in the minor’s best interests to return home. However, the minor’s trial counsel, who is also her CAPTA guardian ad litem, argued in the trial court that it was in the minor’s best interests to remain in foster care. When you contact minor’s counsel, he continues to hold the same position.

Counsel appointed for the minor in the trial court is typically also appointed as "guardian ad litem" for the minor(s). (Welf. & Inst. Code § 326.5 and Rule 5.662. Rule 5.662(d) states: "(d) General duties and responsibilities-The general duties and responsibilities of a CAPTA guardian ad litem are: (l)To obtain firsthand a clear understanding of the situation and needs of the child; and (2) To make recommendations to the court concerning the best interest of the child as appropriate under (e) and (f)." The appellate courts  have taken the position that the CAPTA GAL also manages the appellate litigation.

In Felicity S., the child’s appellate counsel determined that it was in the child’s best interests to return home to her mother and briefed the issue on that basis. (In re Felicity S. (Cal. Ct. App., Nov. 26, 2013, A137439) 2013 WL 6199269, at *10, as modified on denial of reh'g (Nov. 26, 2013), ordered not to be officially published (Nov. 26, 2013).) The appellate court was not pleased and attempted to sanction appellate counsel. In re Felicity S. (2014) 225 Cal.App.4th 1389, 1391, as modified (May 23, 2014), ordered not to be officially published (Aug. 20, 2014).) Although appellate counsel was ultimately not sanctioned, the proceedings raised serious issues about the independence of appellate counsel and the ability to represent minors on appeal without fear of sanctions when appellate counsel determines, based on the record and communication with her client, that it is in her client’s best interests to take a position on appeal that is different than the position of trial counsel.

Hypothetical #3: What are your ethical duties to your client and the court when you have no contact with your client?

As soon as you receive the record, you send your introductory letter to your client, the mother, at her last known address. The letter is returned unclaimed. You contact mother’s trial counsel and learn that trial counsel filed the notice of appeal and mother was not present at the section 366.26 hearing where her parental rights were terminated. However, in reviewing the record, you believe you have some meritorious issues. Do you file an opening brief despite no contact with mother? Do you keep sending service letters to your client knowing that they will be returned or can you serve your client’s trial counsel instead? Do you request oral argument?

In In re P.C. (2011) 198 Cal.App.4th 1533, reh’g granted, opinion not citeable (Sept. 28, 2011), vacated (Cal. Ct. App., Sept. 28, 2011, A130866):

Finally, we are troubled by this appeal. At oral argument, counsel for mother acknowledged that she has had no contact with mother, her client. (fn. 3) Neither counsel nor the agency has been able to locate mother. Mother's attorney stated that she had some contact with mother's trial counsel, who filed and signed the notice of appeal on behalf of mother, but appellate counsel had no contact with her client. We recognize that an appeal from the order terminating parental rights does not require the notice of appeal to be authorized by the parent, as is required in a writ petition to review an order to set a section 366.26 hearing. (See Cal. Rules of Court, rule 8.450(e)(3).) However, it is troubling that counsel has chosen to pursue an appeal that is borderline frivolous on behalf of a nominal client.We appreciate that appellate counsel for parents in dependency cases frequently find themselves in the position of representing a client whose whereabouts are unknown. In such situations, counsel clearly have an obligation to pursue vigorously issues that affect the rights of the parents. However, [198 Cal.App.4th 1547] dependency proceedings involve children who have been abused or neglected and a delay will generally be detrimental to the child. Thus, counsel have a heightened responsibility not to pursue issues of questionable merit, especially at the stage where the lower court has terminated parental rights and the child's interests are of paramount importance. Here, despite receiving no direction from her client and despite being aware of her client's apparent abandonment of any relationship with her child, counsel pursued a marginal appeal. For counsel, who has no reason to believe her client has any interest in this appeal, to take it upon herself to try to reverse the finding of adoptability, which was supported by the opinion of five experts, and thereby prevent P.C.'s chance of having an adoptive parent, raises, in our view, a significant ethical issue. This ethical issue, however, is one that may be unique to the dependency process and not directly addressed by the canons of professional conduct.

fn. 3 We note that counsel's request for oral argument is unusual. Unless the appeal in a dependency case raises a unique or compelling issue, counsel for parents normally forego requesting oral argument. In appeals from orders terminating parental rights, counsel are normally sensitive to the importance of having the case resolved as quickly as possible and recognize that requesting oral argument generally delays the issuance of an appellate court's decision.

Special Situations

Competency

"The state has the duty to care for and protect the children that the state places into foster care, and as a matter of public policy, the state assumes an obligation of the highest order to insure the safety of children in foster care." (Welfare and Institutions Code sec. 16000.1 (a)( 1).) Thus, in the trial court, an attorney must be competent to handle dependency cases. (Welf. & Inst. Code § 317.5 [“All parties who are represented by counsel at dependency proceedings shall be entitled to competent counsel.”]; Rule 5.660.)

Confidentiality

Juvenile case files are confidential and may only be inspected by certain persons. (Welf. & Inst. Code § 827.) In addition, some records may be sealed under Rule 8.46. Therefore, appellate counsel must ensure the records remain confidential throughout the proceeding and when returning the record to the client. If a record contains material that is sealed or should be sealed, appellate counsel should ensure that the client is not provided access to the sealed materials. Also, Identity of mandatory reporters (Pen. Code, § 11167) and  names and addresses of foster parents may be confidential.  (See e.g. Welf. & Inst. Code, § 308(a), Cal. Rules of Court, rule 5.715, 5.720, 5.725.) If the information, such as a foster parent’s address, can be easily redacted, appellate counsel may redact the record. Otherwise, appellate counsel may file a motion in the appellate court requesting counsel be provided with a new record that is properly redacted.

Retaining your case file

There are special considerations when retaining a juvenile dependency case file because previous dependency cases may impact current and future dependencies (See e.g. Welf. & Inst. Code, § 361.5, subds. (b)(10), (b)(11).) If you cannot return the file to your client, then consider maintaining a copy of the file in some form for the life of the client.

Civility

No discussion on ethics is complete without considering In re S.C. (2006) 138 Cal.App.4th 396, 412 :

"'[I]t is vital to the integrity of our adversary
legal process that attorneys strive to maintain the
highest standards of ethics, civility, and
professionalism in the practice of law.' [Citation.]
Indeed, unwarranted personal attacks on the character
or motives of the opposing party, counsel, or
witnesses are inappropriate and may constitute
misconduct. [Citation.]"

If you have not read this case, read it now to see how not to write an appeal.

Conclusion

This article is intended as a brief overview of some of the ethical concerns that are unique to appointed appellate dependency counsel. Most ethical questions can be resolved by looking at the basics: the purpose of the rules of professional conduct is to protect the public and promote respect and confidence in the legal profession. (California Rules of Professional Conduct, Rule 1-1000 (A), http://rules.calbar.ca.gov/Portals/10/documents/2014_CaliforniaRulesofProfessionalConduct.pdf.)

Every ethics problem boils down to “How can I best protect and represent my client while simultaneously promoting respect and confidence in the legal profession?” It sounds easy, but as the above situations illustrate, there are not always easy answers and reasonable minds can disagree in some situations. But you’ll be prepared as long as you discuss your situation with your colleagues, periodically review the California Rules of Professional Conduct, and keep going to ethics presentations.