Can an appointed trial lawyer sign a notice of appeal for an indigent parent in a juvenile case even if the lawyer doubts the appeal has merit?

Plain-English summary

Indigent parents in abuse, neglect, dependency, and termination-of-parental-rights (TPR) cases are entitled to appointed counsel at trial and on appeal. Rule 3A of the North Carolina Rules of Appellate Procedure requires that, when an appellant is represented, both trial counsel and the appellant sign the notice of appeal. Appointed trial lawyers sometimes hesitate to sign when a client wants to appeal, fearing the appeal lacks merit and that signing could run afoul of Civil Procedure Rule 11(a) and Rule 3.1 of the Rules of Professional Conduct. Because the Supreme Court has held that an Anders-type brief may not be filed in juvenile cases (In re Harrison), the appointed appellate lawyer who finds no meritorious issues advises the client and, if the client will not withdraw the appeal, moves to withdraw.

The opinion concludes it is not unethical for the trial lawyer to sign the notice of appeal to preserve the client's right. Whether signing satisfies Civil Procedure Rule 11 is outside the committee's purview, but the committee can address Rule 3.1, which bars asserting an issue without a non-frivolous basis in law and fact. Given the state's strong interest in due process for parents (shown by the statutory right to appointed trial and appellate counsel) and because the notice of appeal preserves the right to appeal without asserting any particular legal argument, it is not unethical for the appointed trial lawyer to sign even if the lawyer does not believe the appeal has merit. The trial lawyer may rely on the appointed appellate lawyer's later review of the record to determine whether to pursue the appeal.

In practice

Under the North Carolina rule as it stood at the time of the opinion, an appointed trial lawyer in a juvenile abuse, neglect, dependency, or TPR case may sign the notice of appeal required by Appellate Rule 3A to preserve an indigent parent's right to appeal, even if the lawyer doubts the merit. Per the opinion, signing does not violate Rule 3.1 because the notice preserves the appeal right without asserting a particular legal argument, and the trial lawyer may rely on the appointed appellate lawyer's later record review. The opinion expressly does not decide whether signing satisfies Civil Procedure Rule 11.

Common questions

Q: Must I sign a juvenile-case notice of appeal even though I think the appeal lacks merit?

A: The opinion concludes it is not unethical to sign to preserve the indigent parent's right to appeal, because the notice preserves the right without asserting a particular legal argument; it does not decide whether signing satisfies Civil Procedure Rule 11.

Q: Does signing the notice violate Rule 3.1's bar on frivolous positions?

A: No. The opinion concludes that because the notice of appeal preserves the right to appeal and does not itself assert a legal argument, signing it is not a frivolous assertion under Rule 3.1.

Q: Can I rely on the appellate lawyer to weed out a meritless appeal?

A: Yes. The opinion concludes the trial lawyer may rely on the court-appointed appellate lawyer's subsequent review of the record to determine whether to pursue the appeal.

Background and rules framework

The opinion applies North Carolina Rule 3.1, the analogue of Model Rule 3.1, which prohibits bringing a proceeding or asserting an issue without a basis in law and fact that is not frivolous. It reads the rule against the statutory framework for appointed counsel in juvenile cases (N.C. Gen. Stat. 7B-602, 7B-1101, 7A-27, 7A-451), Appellate Rule 3A's dual-signature requirement, and the bar on Anders briefs in juvenile appeals (In re Harrison). It declines to opine on Civil Procedure Rule 11(a).

Citations and references

Rules of Professional Conduct:

• MR 3.1 / NC Rule 3.1 (meritorious claims and contentions; no frivolous proceedings or issues)

Other authority:

• N.C. R. App. P. 3A (notice of appeal in juvenile cases; signatures of trial counsel and appellant).
• N.C. R. Civ. P. 11(a) (signature certification; outside the committee's purview here).
• N.C. Gen. Stat. 7B-602, 7B-1101, 7A-27, 7A-451 (appointed counsel for indigent parents).

Cases:

• In re Harrison, 136 N.C. App. 831, 526 S.E.2d 502 (2000), an Anders-type brief may not be filed in juvenile cases.

See also

• NC State Bar 2016 FEO 2: Frivolous Pro Se MAR
• NC State Bar 2022 FEO 2: Limited Criminal Defense

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2008-formal-ethics-opinion-17/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry:

Indigent parents who are parties in abuse, neglect, dependency, and termination of parent rights (TPR) juvenile proceedings are entitled to appointed counsel at both the trial court and the appellate levels. N.C. Gen .Stat. §§7B-602; 7B-1101; 7A-27; 7A-451.

Rule 3A of the North Carolina Rules of Appellate Procedure, N.C. R. App. P. 3A, applies to juvenile cases alleging abuse, neglect, or dependency or in which a TPR was sought. Rule 3A provides, in part,

…If the appellant is represented by counsel, both the trial counsel and appellant must sign the notice of appeal,…

The remaining provisions of the rule protect the privacy interests of the juvenile and provide for expedited procedures and calendaring priority.

An indigent parent has the right to appeal the trial court's decision. However, an appointed trial lawyer will, on occasion, decline to sign the notice of appeal, as required by N.C. R. App. P. 3A and as requested by the client, because the lawyer is concerned that the appeal lacks merit and the lawyer may be in violation of Rule 11(a) of the North Carolina Rules of Civil Procedure and Rule 3.1 of the Rules of Professional Conduct. N.C. R. Civ. P. 11(a) provides in part,

…The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well-grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation…

An appellate lawyer is appointed by the Office of the Appellate Defender to represent an indigent parent on the appeal. This lawyer reviews the record to determine whether there are justiciable issues. On many occasions, the appellate lawyer finds justiciable issues that the trial lawyer did not identify. However, on some occasions, the appellate lawyer determines that there are no meritorious legal arguments to be made. In juvenile cases, the Supreme Court has ruled that an Anders-type brief may not be filed. In re Harrison, 136 N.C. App. 831, 526 S.E. 2d 502 (2000). Therefore, the appellate lawyer will advise the client that the appeal is without merit and ask the client to withdraw the appeal. If the client refuses to do so, the lawyer files a motion to withdraw from the representation.

In appeals of juvenile cases, when the client has indicated that he or she wants to appeal and is prepared to sign the notice of appeal as required by N.C. R. App. P. 3A, is it unethical for the appointed trial lawyer to sign the notice of appeal to preserve the client's right to appeal even if the trial lawyer has doubts as to the merit of the appeal?

Opinion:

No, it is not unethical for the trial lawyer to sign the notice of appeal to preserve an indigent client's right to appeal in a juvenile case. Whether signing the notice violates Rule 11 of the Rules of Civil Procedure is outside the purview of the Ethics Committee. Nevertheless, the committee can opine on whether the lawyer is in violation of the prohibition in Rule 3.1 of the Rules of Professional Conduct on bringing a proceeding or asserting an issue unless there is a basis in law and fact for doing so that is not frivolous. In TPR and other juvenile cases, the state's interest in ensuring due process for parents is demonstrated by the statutory requirement for court appointed-trial and appellate counsel for indigent parents. In light of this public policy, and when the notice of appeal serves to preserve the client's right to appeal but does not assert a particular legal argument, it is not unethical for the appointed trial lawyer for an indigent parent to sign a notice of appeal although the trial lawyer may not believe that the appeal has merit. Moreover, the trial lawyer may rely upon the court-appointed appellate lawyer's subsequent review of the record to determine whether to pursue the appeal.