State Bar of Arizona Ethics Opinions

86-02: Scope of Representation; Diligence; Termination
2/1986

Attorney appointed by juvenile court encountering problems in his attempted representation of client due to minor's parents intervention and minor's lack of cooperation.



FACTS

The inquiring attorney has submitted the facts as follows:

Attorney A has been appointed by the juvenile court to represent B, a juvenile defendant, on several serious criminal offenses which include kidnapping, sexual assault, sexual conduct with a minor and theft. A hearing as to whether or not to transfer the juvenile to adult court is presently pending. B's parents have continuously attempted to forcefully intervene in the legal proceedings by filing pleadings in both the Juvenile Court and the Arizona Supreme Court. Since the commencement of the action, B has been represented by three different attorneys, one court-appointed and two privately retained. None of these were deemed satisfactory by the parents, who alleged inadequate representation each time and finally requested that the court allow them to represent the juvenile themselves. B has repeatedly concurred in that request. However, the court, believing that the juvenile should not represent himself and that the parents are not qualified to do so and, further, are not acting in the juvenile's best interest, has appointed A as B's attorney, sua sponte. When A, in the course of his representation of B, attempted to visit with B in the jail, B refused to see him.

QUESTIONS

1. To what extent and degree is the attorney required to confer with B's parents concerning legal decisions in B's case?

2. Is the attorney obligated to provide legal information and/or materials to B's parents?

3. If the attorney is unable to secure the cooperation of the parents and this lack of cooperation is, in his opinion, injurious to the adequate representation of the minor client, is the attorney then under a duty to withdraw from the representation or should he continue it to the best of his ability?

4. Should the attorney attempt to limit contact between the juvenile and his parents if he believes that the parents are providing bad advice and information to the juvenile?

5. If it is apparent that pleadings filed by the parents on behalf of the son are without legal merit and constitute interference with proper legal representation, does the attorney have the right or duty to quash or modify these pleadings?

6. If the parents and/or their son demand the right to self-representation and request that the attorney be relieved as counsel of record, what, if any, are the attorney's duties as court-appointed counsel for the minor?

ETHICAL RULES INVOLVED

ER 1.2. Scope of Representation

(a) A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued. *****  In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

************

ER 1.3. Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

ER 1.4. Communication

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

ER 1.6. Confidentiality of Information

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs ( b), (c) and (d) or ER 3.3(a)(2).

*******

ER 1.16. Declining or Terminating Representation

*****

(c) When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

*****

ER 3.1. Meritorious Claims and Contentions

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. ************

ER 3.2. Expediting Litigation

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

OPINION

Before we can proceed to answer the questions presented to us, we believe that it is necessary to examine briefly the role of the court-appointed attorney, the juvenile and the juvenile's parents in juvenile court proceedings. Although this involves a legal analysis which normally is outside the scope of the Committee's jurisdiction, we believe it is a threshold issue which must be answered before these questions can properly be answered.

It seems· very clear that the Court acted within its legal authority in appointing counsel for the juvenile, despite the fact that neither the parents nor the juvenile consented to this appointment. A.R.S. § 8-225, paragraphs C, D and E, provide as follows:

“C. Prior to any court appearance which may result in detention, institutionalization or mental health hospitalization of a child, the court shall appoint counsel for the child if counsel has not been retained by or for the child, unless counsel is waived by both the child and a parent or guardian with whom the child resides or resided prior to the filing of a petition. The child, parent or guardian may withdraw the waiver of counsel at any time.

“D. Waiver of counsel pursuant to this section is subject to the provisions of rule 6, subsection (c) of the Rules of Procedure for the Juvenile Court.

“E. If there appears to be a conflict of interest between a child and his parent or guardian including a conflict of interest arising from payment of the fee for appointed counsel under subsection G, the juvenile court may appoint an attorney for the child in addition to that appointed for the parent or guardian or employed by the parent or guardian.

Rule 6(c) of the Rules of Procedure for the Juvenile Court provides as follows:

“A child may waive counsel if the court finds that his waiver is knowingly, intelligently and voluntarily given in view of his age, education, apparent maturity and within the presence of his parents, guardian or custodian, at the time of waiver. The waiver of counsel should also be obtained from parents, guardian or custodian in attendance on behalf of the child and themselves. Waiver of counsel shall be set out in writing or in the minutes of the court. If there is a conflict of interest between the child and his parents, guardian or custodian, the court shall impose such safeguards on waiver of counsel as appear in the best interests of the child.”

These statutory provisions are supported by case law which adopts the concept that, in a juvenile court proceeding, the parents do not possess the ultimate authority over how the child's case is to be handled. The Court may exercise its own judgment as to what is in the best interests of the child. See, for example, In the Matter of the Appeal in Yavapai County Juvenile Action No. J-8545, 140 Ariz. 10, 16, 680 P.2d 146 (1984), wherein the Court held that independent counsel shall be appointed in those cases where there are conflicts of interest such that a child's best interests are not fully explored, advocated or included in the record.

In fact, the cases make it clear that the parents' consent is not a requisite ingredient in insuring that a minor's constitutional rights are not violated, as when a statement is taken from a juvenile. See In Re Charles P., 184 Cal. Rptr. 707 (1982) (the presence of a parent, attorney or other interested adult is not required before a minor can waive his constitutional rights); Matter of Appeal in Pima County Juv.Act. No. J-37390-1, 116 Ariz. 519, 521, 570 P.2d 206 (App. 1977) (the absence of parents during waiver of the right to remain silent by a juvenile is only one of the elements to be considered by the juvenile court when determining if waiver was voluntary, knowing and intelligent); Matter of Appeal in Maricopa Cty. Juv., Etc., 118 Ariz. 284, 288, 576 P.2d 143 (App. 1978) (there is no per se rule of exclusion where a juvenile is questioned outside the presence of his or her parents).

In light of the above statutory and case law it appears that the role of the attorney in a juvenile proceeding is a special one. It is an essential function of the juvenile system to safeguard the juvenile's rights and to protect his interests, which are not necessarily the same as the parent's interests. That is not to say that the parents are to be excluded completely from the proceeding or from maintaining contact with their child. While there is no requirement of parental advisement, it is a factor to be considered in the totality of circumstances test used by the trier of fact in arriving at conclusions and findings. See In Re Gregory Z., 206 Cal. Rptr. 511 (1984).

Ordinarily, the right to appear and defend with retained counsel includes the right to appear with counsel of one's own choice (U.S.C.A. Const. Amends. 6, 14; A.R.S. Const. Art. 2, § 24). However, in the case of court-appointed counsel, the defendant does not have a right to a particular appointed attorney (State v. Kruchten, 101 Ariz. 186, 201, 417 P.2d 510 (1966), certiorari denied 87 6. Ct. 784, 385 U.S. 1043, 17 L. Ed. 2d 687).There is no reason to assume that this is any different when the attorney is appointed by the Juvenile Court as independent attorney for the minor.

In the event that the juvenile is transferred to the Superior Court to be prosecuted as an adult, the special safeguards established for the benefit of juvenile defendants in the juvenile court system would no longer apply. Nor would there be any need for appointment of "independent" counsel; however, the defendant would, of course, still be entitled to be represented by counsel, including appointed counsel if he is indigent, and to other constitutional safeguards afforded adult criminal defendants.

With this analysis in mind, we proceed to answer the questions posed by the inquiring attorney:

Questions one and two both involve communications with the parents and our answer is therefore responsive to both of these questions.

Loyalty is an essential element in the lawyer’s relationship to a client. The court in this case, having determined that the parents’ interests are in conflict with or adverse to the juvenile's interests, found it necessary to appoint an independent attorney for the juvenile. The lawyer's allegiance therefore is owed primarily to his court-appointed client and not to his client’s parents. Having assumed a special function by order of the court, the attorney is not required to confer with B's parents on the legal decisions.

ER 1.6 deals with confidentiality of information. It is an ethical obligation of a lawyer to hold inviolate confidential information of a client and it is a fundamental element for proper representation of the client. This confidentiality may only be breached in certain limited situations, such as where the client consents to disclosure after being fully advised of the consequences of the disclosure, or where the lawyer foresees that the client intends to do serious harm to another person or to himself. In other situations disclosure is left to the lawyer's exercise of discretion, taking into consideration such factors as the nature of the lawyer's relationship with the client and with those who might be injured by the client, the lawyer's own involvement in the transaction and factors that may extenuate the conduct in question. In any case, a disclosure adverse to the client's interest should be no greater than the lawyer reasonably believes necessary for the purpose.

From the facts in the case before us, it appears that the juvenile has given his consent to disclosure since he wants his parents to represent him as counsel or co-counsel with an attorney. However, any disclosure make by the attorney in his discretion must be limited. This would apply to verbal as well as to written communications and to any documents the lawyer may choose to make available to the parents. This is the case even if the juvenile requests that the attorney supply his parents with copies of all materials and information in the attorney's possession. While a lawyer, pursuant to ER 1.2, shall abide by a client's decisions, this mandate applies only to those decisions concerning the objectives of the representation. A lawyer shall consult with the client regarding the means used to achieve this objective but he is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so. This was recently reiterated by the Arizona Supreme Court in the case of State v. Lee, 142 Ariz. 210, 215, 689 P.2d 153 (1984), where the court affirmed a basic right of the accused in relation to his representation, namely, the right to make decisions on whether to plead guilty, whether to waive jury trial, and whether to testify. However, the power to decide questions of trial strategy and tactics were found to rest solely with the attorney, since they require the skill, training and experience of the advocate.

In order that the client can make informed decisions, the lawyer must comply with ER 1.4 and keep the client (in this case the juvenile) reasonably informed about the status of the matter and provide him with appropriate explanations.

The inquiring attorney's third question deals with withdrawal in the event that the cooperation of the parents can't be secured. In light of the above discussion, the cooperation or consent of the parents is not essential to the representation of the juvenile. The question of withdrawal is addressed by ER 1.16. Ordinarily, a lawyer may withdraw under certain circumstances since the quality of the attorney - client relationship affects the quality of the representation, and he must withdraw if the client demands that the lawyer engage in illegal conduct or conduct which violates the Rules of Professional Conduct or other law. However, the Rules are more stringent when it comes to accepting or withdrawing from a court appointment. When a lawyer has been appointed to represent a client, withdrawal ordinarily requires the approval of the appointing authority, in this case the Juvenile Court. Unless the attorney has a reason for withdrawal which is more compelling than the reasons generally permitted to be given for withdrawal, he is under a duty to continue representation of the juvenile until he is relieved from the appointment by the court.

The fourth question asks whether it is permissible for the attorney to limit or even prevent contact by the parents with the juvenile.

Denial of contact with and advice of a minor's parents was one of the issues in the case of Ex Parte Cornell, 87 Ok1. Cr. 2. 193 P.2d 904 (1948). There the court frowned upon this denial and stated that a guilty plea should not be received until the parents or guardian of the youth have been notified and have had an opportunity to decide what, if anything, should be done for the defendant. A later Oklahoma case, Application of Gaskill, 335 P.2d 1988 (Ok1. Cr. 1959), called the denial of parental contact and advice in the Cornell case "revolting". The recent California case In Re Gregory Z., supra, held that the police had no duty to advise the minor of a right to have his mother present before or during interrogation, absent request by the minor to see or speak to his mother, even though the mother was seeking to speak with or see her son whom police had taken into custody.

In the case before us, the denial of contact and advice would be in the face of strong opposition from both the parents and the juvenile. To date, our courts have not dealt with this issue. Since this question involves a legal issue, rather than an ethical one, we find that it is beyond the scope and jurisdiction of this committee.

Responding to question five, we refer the inquiring attorney to ER 3.1 which requires that an attorney proceed within certain limits when asserting or defending a claim. Mainly, the attorney has a duty not to abuse legal procedure. This rule, as it relates to the question at hand, states that even a defense must have a basis which is not frivolous. Further, ER 3.2 requires an attorney to make reasonable efforts to expedite litigation, consistent with the interests of the client. To respond to or move to quash an obviously frivolous pleading would serve no purpose other than to divert the lawyer's efforts from the proceedings at hand and would therefore have the effect of prolonging matters rather than expediting them. However, if any basis for a legal argument exists to which a response might be required, then the attorney must be sure that such a response is promptly forthcoming so that his client's interests may not be adversely affected.

Question number six deals again with the issue of withdrawal. As we have discussed in our answer to question three, the attorney has the duty to represent the client to the best of his ability until he is relieved from his appointment by order of the court. As we have discussed above, a juvenile may waive his right to counsel if the court, after applying the totality of circumstances test, finds that such waiver was knowingly, intelligently and voluntarily made. ER 1.3 states that a lawyer shall act with reasonable diligence and promptness in representing a client. This means that it is the lawyer’s duty to pursue the matter on behalf of the client despite opposition, obstruction or personal inconvenience to the lawyer. The fact that the client refuses to see the attorney should not prevent the attorney from proceeding with zeal and dedication to protect the interests of the client.

EDITOR'S NOTE:

A minority of the Committee members although not disagreeing with the opinion, would add something to the discussion of question number 6 which deals with how to treat the juvenile's possible demand for self-representation. Subject to the provisions of Rule 6 of the Rules of Procedure for the Juvenile Court, the juvenile has an absolute right to represent himself. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). If the client refuses to see his lawyer, the lawyer ought to file a motion for determination of counsel so that the court can squarely face the question of whether the juvenile is demanding to represent himself.

This Committee would also like to make reference to E.R. 1.14, Client Under A Disability.

Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rule changes, a different conclusion may be appropriate. 

 

© State Bar of Arizona 1986

 



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