No Details Required

An attorney appointed to represent a client in a post-conviction proceeding may withdraw from the matter based on her assertion that continued representation would involve violation of disciplinary rules without filing an Anders-type pleading that details the problem, according to a 3-2 majority opinion of the Vermont Supreme Court. The motion to withdraw had cited rules relating to frivolous claims ans candor to the court. The court holds:

An Anders-type explanation justifying counsel’s withdrawal is notrequired in the PCR context.  The withdrawal prerequisites called for in Andersare designed to vindicate a defendant’s constitutional right to counsel,386 U.S. at 744, and, as the United States Supreme Court has recognized, apetitioner has no constitutional right to counsel in civil PCRproceedings.  See Pennsylvania v. Finley, 481 U.S. 551, 555(1987) (rejecting notion that prisoners have a constitutional right to counselwhen mounting collateral attacks upon their convictions).  Absent anunderlying constitutional right to counsel in state post-convictionproceedings, there is “no constitutional right to insist on the Andersprocedures which were designed solely to protect that underlying constitutionalright.”  Id. (“Anders established a prophylactic frameworkthat is relevant when, and only when, a litigant has a previously establishedconstitutional right to counsel.”); see also People v. Breaman, 939 P.2d1348, 1351 n.2 (Colo. 1997) (en banc) (citing FinleyAndersbrief). 

Rather than being grounded in the constitution, petitioner’s right tocounsel is created, defined, and limited by statute.  See In re Gould,2004 VT 46, ¶ 13, 177 Vt. 7, 852 A.2d 632 (noting that Public Defender Act setsforth statutory right to counsel in PCR proceedings even though providing suchassistance is not constitutionally compelled).  Before 2004, the PDAguaranteed an indigent litigant the right to representation in anypost-conviction proceeding “that . . . the needy personconsiders appropriate.”  13 V.S.A. § 5233(a)(3) (1998) (enacted 1971, No.161 (Adj. Sess.), § 6).  In light of this language, we held that the statewas obligated to provide PCR counsel upon the litigant’s request, regardless ofthe merit of the claims raised in the PCR or the fact that representation wasnot constitutionally compelled.  Gould, 2004 VT 46, ¶ 13.

There are two dissents. From Associate Justice Johnson:

To provide petitioner withcompetent and effective assistance of counsel and to preserve this Court’s roleas protector of his right to counsel, this Court should deny counsel’s motionto withdraw and require her to file a brief on petitioner’s behalf. Neither the majority’s solution of rubber-stamping the attorney’s conclusionthat the case lacks merit, nor Justice Dooley’s suggestion to require an Anders-typeaffidavit from counsel adequately resolves the conflict between indigentpetitioner’s need for effective and zealous representation and counsel’s ownprofessional obligation to refrain from bringing frivolous cases.  While Iconcur with the majority’s conclusion that an Anders-like procedure isnot constitutionally required or particularly effective in protecting anindigent litigant’s rights, I cannot agree with the majority’s holding thatassigned counsel may withdraw at any point in the course of representationbased solely on counsel’s own, unreviewable conclusion that the case is notwarranted by existing law or nonfrivolous argument.  The graveconsequences of a post-conviction proceeding and the critical requirement ofrobust representation at this proceeding require more.  To solve thisproblem, I would instead require counsel, once appointed, to remain in the caseand to advance her client’s claims notwithstanding that she deems them to bewithout merit.  Because I would deny counsel’s motion to withdraw, Idissent.

(Mike Frisch)