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    Wisconsin Lawyer
    August 01, 2011

    'Catch 22' Ethical Dilemma for Defense Counsel in TPR Litigation

    Losing one's parental rights is a serious matter, which is why representation by counsel and appearance and participation by parents is required in termination of parental rights litigation. But defense counsel face an ethical dilemma when a court denies a motion to withdraw because a parent’s conduct makes it impossible for counsel to provide adequate representation. To continue representation violates professional conduct rules. To not continue representation violates statutory law. It's a classic "Catch 22."

    Christopher R. Foley

    Wisconsin LawyerWisconsin Lawyer
    Vol. 84, No. 8, August 2011


    The recent Wisconsin Court of Appeals decision in State v. Darrell K.,1 broadly interpreting the Wisconsin Supreme Court’s decision in State v. Shirley E.,2 has created an ethical dilemma for circuit courts and defense counsel in termination of parental rights (TPR) litigation. The statutory mandate that a parent who has appeared in an involuntary TPR proceeding shall appear by counsel absent a knowing and voluntary waiver requires circuit courts to deny motions to withdraw even when defense counsel is wholly incapable of providing competent representation because the client’s conduct has rendered counsel incapable of “preparation reasonably necessary for the representation.”3

    Factual Scenario

    Imagine that you have been appointed to represent a respondent-parent in an involuntary TPR proceeding.4 The problem is you have never met your client; he appeared in court pro se at the original hearing and requested State Public Defender (SPD) representation. The court ordered him to reappear for all subsequent hearings and maintain contact with the lawyer appointed to represent him to assist in preparing a defense of the matter. When he failed to appear at the next scheduled plea hearing, you skillfully convinced the slightly irritated judge to again adjourn the plea hearing.

    You have written to your client twice but received no response, and the client did not respond to the voice mail message you were able to leave before his cell phone was disconnected. The child welfare workers also have been unsuccessful in contacting him. You anticipate the petitioner will move for a default judgment and that Judge Irritated (no longer slightly) is not going to adjourn the matter again. You realize that if this ends badly, you might receive a letter from the Office of Lawyer Regulation (OLR) or the appellate counsel’s accusation of ineffective assistance. You want to be released from the representation, and you send the notice of motion to withdraw to the client, scheduling it to be considered at the next hearing on the TPR petition. You intend to again seek a continuance if the client does not appear but need that “out” when the judge refuses to again adjourn. No judge could possibly expect you to continue to represent this client under the circumstances, right? What could possibly go wrong?

    Guess again! Darrell K. holds that it is reversible error for a court to grant a motion to withdraw even in the face of counsel’s assertions that counsel cannot provide competent representation.

    Competent Representation, the Nonappearing Client, and Default Judgments

    The fact situation above is not atypical. In the worst-case scenario – as set forth above – the parent, after having been ordered to reappear and applying for counsel through the SPD, never reappears; does not communicate with counsel; and, obviously, does not communicate his objectives for the litigation and other directions required by SCR 20:1.2. This scenario puts defense counsel in a particularly difficult ethical quandary.

    It is likely the county will make a motion for default for failure to appear and contest the petition, often in conjunction with a motion to sanction the parent by default for violating the order to appear (discussed below).5 Although the parent’s appearance and request for counsel would intimate that the parent wishes to contest the petition, the client has not provided specific direction in that regard or relating to substitution of judge or demand for a jury determination. Hence, in the author’s view, it would be unethical under SCR 20:1.2 for the lawyer to contest the petition for TPR on behalf of the client. However, if the lawyer does not contest the petition, she or he might justifiably anticipate a complaint to the OLR or a later claim that the lawyer was ineffective. Such a complaint, absent other considerations, would have no merit.6 But withdrawal, in the author’s view, although both logical and ethically required, cannot be authorized.

    In other instances, the client may reappear; consult with counsel and provide initial direction; and then, in violation of the court order, fail to appear at subsequent hearings or appear for a deposition or otherwise cooperate with discovery and fail to communicate with her lawyer or provide even a modicum of assistance in preparing a defense of the matter. In this scenario, the county will probably bring a motion for default as a sanction for egregious or bad-faith violation of the court’s order. The Wisconsin Supreme Court has affirmed the power of a circuit court to find a parent in default in TPR proceedings for egregious or bad-faith violations of court orders, including orders to appear in person for hearings.7

    The default sanction is authorized by Wis. Stat. section 804.12(2), but, as emphasized in Evelyn C.R., is appropriate only in instances of egregious or bad-faith violations of court orders. In this scenario, because counsel is wholly incapable of providing competent representation to the client as to the default motion or as to the merits of the litigation, counsel is, again in the author’s view, ethically obligated to withdraw.8 However, as noted, the Darrell K. court has now held that allowing withdrawal violates the dictates of State v. Shirley E. and is reversible error. Hence, defense lawyers are obligated to provide incompetent representation in violation of the Rules of Professional Conduct.

    The Shirley E. Decision

    Indigent, residing out of state, and prohibited from travelling out of state without permission of corrections authorities, Shirley E. repeatedly failed to appear personally for hearings on the TPR petition despite court orders requiring her to do so. Her only actual appearance was by phone. However, counsel that Shirley had secured through the SPD appeared on her behalf for all hearings. Quite notably, Shirley had been in contact with the lawyer, who was adamant that she could and should competently represent Shirley’s interest despite Shirley’s failure to personally appear.

    The circuit court granted the petitioner’s motion for default as a sanction as a result of Shirley’s failure to appear in person. In conjunction with the default finding, and over the repeated objections of Shirley’s counsel, the circuit court discharged counsel and excluded her from the grounds-phase “prove up”9 and dispositional-phase hearing.10 Shirley’s parental rights were terminated.

    The supreme court reversed the order. The court said that although a nonappearing parent could be found to have defaulted if the violation was egregious or in bad faith, Wis. Stat. section 48.23 requires that a parent appearing in an involuntary TPR proceeding “shall be represented by counsel” absent a knowing and voluntary waiver. Shirley had appeared and did not waive counsel: thus, the discharge of her lawyer violated her statutory right to be represented by counsel, requiring reversal of the order.11

    Circuit courts and all counsel must be aware that the supreme court seriously questioned the propriety of the default sanction for failure to personally appear. It noted the absence of a finding that the violation of the court order was egregious or in bad faith and pointed out that the circuit court ordered the sanction the first time the parent had failed to appear in person after having been ordered to do so. The supreme court noted that the issue of the egregious nature of Shirley’s conduct was not before it.12 Taking that cue, in Rock County DHS v. Daphnea W.,13 the court of appeals reversed a termination order resulting from a default finding in which the circuit court failed to find (and could not reasonably find) that the parent’s failure to appear was egregious or in bad faith.

    The Darrell K. Decision

    In State v. Darrell K., the attorney attempted to withdraw, in contrast to Shirley E., in which the court discharged the attorney.14

    Darrell K. appeared for the first plea hearing and requested appointment of counsel. He appeared with counsel at an adjourned plea hearing, denied the petition, and demanded a jury trial in the grounds phase of the proceedings. He was ordered to appear in person for all subsequently scheduled hearings, be on time, maintain contact with his lawyer, and comply with discovery obligations.

    Darrell failed to appear for the next two scheduled hearings, including a final pretrial hearing. His counsel filed and notified Darrell of a motion to withdraw from the representation. Counsel’s affidavit indicated that he had had no contact with Darrell despite sending five letters to him and trying three times to contact him by phone (by the time of the hearing, counsel estimated, he had attempted 10 telephone contacts). One week before trial, counsel indicated that he had been unable to secure any trial preparation information, including the identity of witnesses, and was incapable of competently representing the client’s interest.

    After opining that Shirley E. was not controlling, the circuit court granted the motion to withdraw and found Darrell in default for egregious violations of the court’s orders. The petitioner offered prove-up testimony, and the court found Darrell to be unfit. The court then adjourned the matter for a dispositional hearing. Darrell appeared; the dispositional hearing was adjourned and Darrell was re-referred for appointment of counsel. New counsel filed a motion to vacate the default judgment. Darrell failed to appear for the hearing on the motion to vacate, and the court denied the motion. Darrell appeared with counsel and participated in the next scheduled dispositional hearing. The court determined that termination and adoption served the child’s best interests and terminated Darrell’s parental rights.

    The court of appeals reversed. Without noting a distinction between discharge of counsel who asserted a right and ability to represent the client’s interest despite the client’s absence from the hearing and withdrawal of counsel who asserted that he was incapable of providing competent representation of the client’s interest, the court stated: “[T]he [Shirley E.] court held that this procedure violated a parent’s statutory right to representation by stating that ‘[a] [trial] court [has] no power to bar the parent or parent’s counsel from participation at the fact-finding stage.’”15

    The Ethical Quandary

    As emphasized in Shirley E. and Darrell K., Wis. Stat. section 48.23(2) mandates that a parent who appears in an involuntary termination proceeding be represented by counsel absent a knowing and voluntary waiver. Specifically, the statute requires that “any parent 18 years old or older who appears before the court (in an involuntary termination of parental rights proceeding) shall be represented by counsel.”16

    However, a lawyer is ethically obligated to provide competent representation, which includes being adequately prepared for the representation.17 A lawyer must abide by the client’s decisions concerning the objectives of representation and consult with the client as to the means by which the objectives are to be pursued. In cases involving deprivation of liberty, the lawyer must consult with and abide by the client’s decisions regarding the plea to be entered and the exercise or waiver of the right to jury.18 A lawyer who cannot provide competent representation is obligated to withdraw from representation because continued representation would result in a violation of the Rules of Professional Conduct.19

    Lawyers whose efforts to communicate with their clients have been unsuccessful and who have no guidance from their client as to the objectives of representation, the identity and location of necessary witnesses, and the like clearly are not capable of providing competent representation. As noted, a particular ethical quandary arises when the client never appears with or communicates with counsel because that client has not directed counsel whether to contest the petition, demand a jury, or request substitution of judge, which are all decisions that the client must make before the plea hearing concludes.20 In Darrell K., because of the client’s complete lack of responsiveness to counsel’s communication attempts and the client’s nonappearance, counsel was wholly unprepared to address pretrial and trial issues and provide competent representation. Hence, in each scenario, an ethical duty to withdraw arises.21

    Christopher FoleyChristopher Foley, Marquette 1978, is a Milwaukee County Circuit Court judge.

    Waiver/Forfeiture of Counsel by Conduct

    The absolute language of the right-to-counsel statute lies at the core of this quandary. Does the requirement that the parent appear by counsel absent a knowing and voluntary waiver require counsel to continue representation in violation of the Rules of Professional Conduct or the court to require continued representation in the face of counsel’s assertion that he or she cannot provide competent representation?

    The Shirley E. court never confronted the withdrawal issue. Shirley E. implicitly rejected an interpretation of “appears” as encompassing a continuing duty to appear personally (as is the common order of the court) or by counsel capable of providing competent representation.22 One can logically argue that a client who fails to maintain contact with his or her lawyer, fails to appear for deposition, and repeatedly fails to personally appear for hearings, all in violation of the court’s orders, triggering an obligation on the part of the lawyer to seek to withdraw, no longer “appears” under the language of the statute.23

    More important, the concept of waiver/forfeiture of the right to counsel by the client’s conduct has long been recognized in Wisconsin:

    “In such a situation, a waiver of counsel … occurs, not by virtue of a defendant’s express verbal consent to such procedure, but rather by operation of law because the defendant has deemed by his own actions that the case proceed accordingly.”24

    Justice Steinmetz noted in Cummings that continued representation may have resulted in a violation of defense counsel’s ethical obligations.

    The Cummings court emphasized that waiver/forfeiture of counsel can only occur in unusual circumstances, most often involving a client’s manipulative and disruptive conduct amounting to a deliberate choice to proceed without counsel. In such circumstances, motions for default as a sanction and motions to withdraw as counsel are contingent on findings of egregious or bad-faith violations of court orders to appear, maintain contact with counsel, and cooperate with the discovery process, which are the substantial equivalent of manipulative and disruptive conduct. Most courts in TPR litigation also forewarn litigants that default – the loss of the right to fight against termination – can result from violations of the court order.25

    It is worthy of mention that Cummings addressed the waiver/forfeiture of a constitutional right to counsel as opposed to a statutory right to counsel, which attends termination proceedings.

    Appellate courts in some states have embraced the waiver/forfeiture of counsel by conduct in TPR cases. Noting that the parent’s lawyer could not “effectively or ethically represent” the respondent parent in view of her lack of contact and failure to appear, the Washington appellate court approved a trial court order allowing counsel to withdraw and resultant default of the respondent-parent.26 In circumstances strikingly similar to those in Darrell K.,27 counsel was allowed to withdraw due to a lack of contact, nonresponsiveness to communication from counsel, failure to respond to a motion to withdraw and, ultimately, failure to appear for trial. Termination was granted by default.28 The Ohio Court of Appeals reached a similar result for similar reasons in
    In re C.H.29


    Pending further guidance from the Wisconsin appellate courts, circuit courts and counsel for nonappearing and noncommunicative respondent-parents will continue to struggle with the inherent conflict between the mandate that the parent appear by counsel and the ethical duty to withdraw when counsel is incapable of providing competent representation. In situations in which clients do not appear or communicate, the attorney should seek an adjournment to continue to attempt to communicate with and secure the appearance of the client. In conjunction with that adjournment request, the attorney should argue that the noncompliant behavior does not warrant the sanction of default. Circuit courts and all attorneys must be ever mindful of the sacred and fundamental liberty interest at stake in TPR litigation and proceed with due regard to that interest. Appellate courts appear to be highly sensitive – appropriately so – to any suggestion that circuit courts are looking for short cuts in addressing issues of this magnitude.

    However, when those arguments fail and the court is satisfied that default is warranted based on the client’s egregious or bad-faith violations of the court order, counsel is, in the author’s view, duty bound to move to withdraw because counsel cannot competently represent the client.30 However, circuit courts, under current case law, should deny the motion. At that point, counsel should make a record that the absence of communication and direction as to the client’s objectives in the litigation leaves counsel with no ability to offer any valid input for or from the client.31 Some counsel, faced with this ethical dilemma, have vigorously attacked the quality of the petitioners’ proof through cross-examination – most often in regard to the reasonable efforts of child welfare agencies to provide parents with court-mandated services to assist the parent in meeting the conditions of safe return in continuing need of protection and services cases. However, the suggestion that these efforts can or do rise to the level of “zealous [and] competent” representation and “effective assistance”32 dumbs down the concept of competent representation beyond any bounds of reason.

    Until appellate courts either further address whether withdrawal is permitted when a lawyer is incapable of competent representation or embrace the waiver of counsel through egregious or bad-faith violations of court orders, circuit courts are obligated to require counsel to continue representing the respondent-parent even though counsel is incapable of providing competent representation as required by the Rules of Professional Conduct.


    1 State v. Darrell K., 2010AP1910 (Wis. Ct. App. Oct. 19, 2010) (unpublished slip op).

    2 State v. Shirley E., 2006 WI 129, 298 Wis. 2d 1, 724 N.W.2d 623.

    3 SCR 20:1.1.

    4 Wis. Stat. section 48.23(2) and (4) mandates representation by counsel in an involuntary termination of parental rights proceeding absent a knowing and voluntary waiver and obligates the State Public Defender to provide representation for indigent parents. Obviously, the ethical dilemma addressed in this article can also arise in the instance of retained counsel.

    5 Wis. Stat. § 48.422(3); Kenosha County DHS v. Kimberly B., No. 2009AP1715 (Wis. Ct. App. Dec. 17, 2008) (unpublished slip op.).

    6 Van Hout v. Endicott, 2006 WI App 196, 296 Wis. 2d 580, 724 N.W.2d 692.

    7 Evelyn C.R. v. Tykila S., 2001 WI 110, ¶ 17, 246 Wis. 2d 1, 629 N.W.2d 768.

    8 SCR 20:1.1, 20:1.16(a)(1).

    9 Wis. Stat. section 48.422(3) requires a court to hear testimony in support of the allegations in the petition to warrant a finding that grounds exist to terminate parental rights and the resultant finding, pursuant to Wis. Stat. section 48.424(4), that the parent is unfit.

    10 TPR proceedings are two-phase proceedings. If grounds for TPR are proved and the resultant unfitness finding made, the court proceeds to determine at a dispositional hearing whether termination serves the best interests of the child. Wis. Stat. §§ 48.424(4), 48.426, 48.427. Shirley E. emphasized defense counsel’s ongoing duty to represent a defaulted respondent-parent in the dispositional phase. 2006 WI 129, ¶¶ 55-56, 298 Wis. 2d 1.

    11 Justice Prosser’s concurrence noted that the absent parent who is permitted to participate in the proceeding through counsel is not subjected to a sanction of a “true default judgment.” Shirley E., 2006 WI 129, ¶ 83, 298 Wis. 2d 1.

    12 Shirley E., 2006 WI 129, ¶ 1, 298 Wis. 2d 1.

    13 Rock County DHS v. Daphnea W., 2005AP2618 (Wis. Ct. App. Jan. 19, 2006) (unpublished slip op.).

    14 The author was the trial judge in Darrell K. Upon remand, the matter was assigned to another judge and, as of this writing, is pending before that judge.

    15 Darrell K., 2010AP1910, ¶ 10 (citing Shirley E., 2006 WI 129, ¶ 41, 298 Wis. 2d 1).

    16 Wis. Stat. section 48.23(2) also mandates representation for minor parents but prohibits waiver of the right to counsel by those parents.

    17 SCR 20:1.1. Quite appropriately, but somewhat ironically in this context, the Wisconsin Supreme Court has emphasized that the right to be represented by counsel in TPR proceedings necessarily implies the right to be represented by effective counsel, that is, counsel capable of providing competent representation. Shirley E., 2006 WI 129, ¶¶ 37-38, 298 Wis. 2d 1.

    18 SCR 20:1.2.

    19 SCR 20:1.16(a)(1).

    20 Wis. Stat. § 48.30(2).

    21 Attorneys often seek and secure adjournments to allow them to communicate with clients and adequately prepare for hearings. However, this issue ordinarily arises in the context of a finding that the client’s repeated failure to appear, maintain contact with the lawyer, and meet discovery obligations is egregious or in bad faith. Hence, in that context, continuance requests are to no avail.

    22 Shirley E., 2006 WI 129, ¶ 32, 298 Wis. 2d 1. Citing Evelyn C.R., 2001 WI 110, ¶ 17, 246 Wis. 2d 1, the Shirley E. court stated that a respondent-parent who was not physically present “appeared” in the proceeding through counsel. While the ability of that lawyer to competently represent the respondent-parent’s interest in the parent’s absence appears suspect, that issue apparently was never raised or addressed in either the circuit or the appellate court.

    23 Wis. Stat. section 804.12, which authorizes sanctions for failure to comply with court orders, allows a court to impose a default judgment but also authorizes a court to strike the noncompliant party’s pleading. Arguably, if that sanction is imposed in conjunction with the default judgment, the parent has no longer “appeared” in the action.

    24 State v. Cummings, 199 Wis. 2d 721, 752, 546 N.W.2d 406 (1996) (quoting State v. Woods, 144 Wis. 2d 710, 715-16, 424 N.W.2d 730 (Ct. App. 1988)).

    25 The absence of warning of the consequence was a premise of Justice Geske’s dissent in Cummings. Id.

    26 In re Dependency of A.G., 968 P.2d 424 (Wash. Ct. App. 1998).

    27 The motion for withdrawal was granted at the trial date in A.G. as opposed to the date of the final pretrial in Darrell K. In all other respects, the factual circumstances are strikingly similar.

    28 In re Dependency of E.P., 149 P.3d 440 (Wash. Ct. App. 2006).

    29 In re C.H., 834 N.W.2d 401 (Ohio Ct. App. 2005). These cases were cited by attorney Deanna Weiss in the Legal Aid Society’s brief and petition for review in Darrell K.

    30 Sherman v. Heiser, 85 Wis. 2d 246, 270 N.W.2d 397 (1978), mandates notice to the client of the motion to withdraw.

    31 As noted above, the Shirley E. court emphasized that counsel for the parent had a continuing duty to represent the parent in both the grounds phase and the dispositional phase of the proceedings.

    32 Shirley E., 2006 WI 129, ¶¶ 37, 38, 298 Wis. 2d 1.

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