Ethical Issues in Abuse, Neglect, Dependency Parental Appeals Rick - PDF document

Ethical Issues in Abuse, Neglect, Dependency Parental Appeals Rick Croutharmel, Attorney at Law October 29, 2020 1 Overview • Joint Briefs • Lost Clients • Withdrawing Appeals • Getting Fired 2 Joint Briefs • What is a joint brief? – You and another party join to file one brief. – Not necessarily two parents. • Authority – Appellate Rule 5: Joinder of Parties on Appeal. • Must follow this procedure. • Thereafter, treated as a single appellant. • See also Appellate Rule 26(e) (briefs). 3 1

Joint Briefs cont’d • Appellate Rule 5 Procedure – Each party must file notice of appeal per Appellate Rule 3.1. – The joining parties must file and serve notice of appellate joinder in the trial court. – Proceed as if one party thereafter. 4 Joint Briefs cont’d • Criteria – Both parties (clients) must agree. – Must have same position on appeal as at trial. – Must follow procedure of Appellate Rule 5. – Usually, both parties must have appealed or both parties must be appellees. • But see In re E.H. , 227 N.C. App. 525, 742 S.E.2d 844 (2013) (Civil Rule 41 case). 5 Lost Clients • 2003 Formal Ethics Opinion (FEO) 16 (July 16, 2004) – Addresses attorney’s duties in a juvenile action when the attorney’s client disappears. – See also RPC 1.2(a): Scope. 6 2

Lost Clients cont’d – FEO 16 references RPC 223 • Endeavor to find and communicate with client. • If can’t find client and no communication within reasonable period (6 months), you are constructively discharged. • Make MTW and serve client as best you can. • Don’t advocate a particular position if MTW denied. – Usually not done at the appellate level because of speed at which appeals move. 7 Lost Clients cont’d • No merits briefs – Requires interaction with client during the briefing stage of the appeal. – Must endeavor to find client’s address and mail to him/her the necessary no-merits documents. – Use every address listed for client in the record. – Keep appellate court apprised. 8 Withdrawing an Appeal • Must adhere to client’s wishes (RPC 1.2). • Withdrawal notice/motion must be in writing and must be signed by client. • File in both trial and appellate courts. • See Appellate Rule 37(e). – Pre-record: may be unilateral (notice). – Post-record: must have consent of parties and permission of court (motion). 9 3

Client Wants to Fire You – Must move to withdraw if client asks you to withdraw. • Does not matter how good their chances of success. • Does not matter if you think it is a bad idea (as long as client is competent). – Must have court permission (motion). 10 Questions? 11 4