No Merit
Case Analysis
Sept.
20, 2006
The
ultimate decision in this case may be correct, but the court’s
reasoning will place appellate attorneys in an untenable position.
The
court cannot be faulted for finding that the client’s behavior
in this case — refusing all three of his options and then
refusing to accept mail from his attorney — is unreasonable
and constitutes forfeiture of his rights.
However,
the court goes astray when it speaks of Van Hout’s exercising
his “right to decline a no-merit report”; there is no
such right.
The
attorney in this case should have filed a no-merit brief, notwithstanding
his client’s express directive not to. The plain language
of Rule 809.32 does not allow an attorney to move to withdraw
in these circumstances without filing a brief, and it gives defendants
no right to decline a no-merit report.
Rule
809.32(1)(a) provides, in relevant part, “If an attorney
… concludes that a direct appeal … would be frivolous
and without any arguable merit …, and the person requests
that that a no-merit report be filed or declines to have the attorney
close the file …, the attorney shall file … a no-merit
report (emphasis added). ”
Subection
(1)(b)1 states that the client shall be informed he has only three
options: no-merit report; close the file without an appeal; close
the file and the client can proceed pro se or with retained counsel.
It
is clear from the statute that a defendant has no right to decline
a no-merit report; use of the word “shall” in subsec.
(1)(a) means that a no-merit report is the mandatory course of
action if the client refuses his other two options: close the
file without action; or proceed pro se or with retained counsel.
Furthermore,
the disjunctive “or” after “the person requests
that a no-merit report be filed” clearly contemplates that
such reports shall be filed if appropriate, despite the objection
of the client.
However,
at no point in the opinion does the court set forth the text of
the rule, much less reconcile its reasoning to it.
The
effect of the holding, thus, is to create a fourth option for
defendants — have the attorney move to withdraw, without
filing a brief — even though that is not permitted by the
rule.
Whenever
a client files a no-merit brief, there is an ethical tension involved.
The court of appeals recently noted this in its decision in State
of Wisconsin ex rel. Ford v. Holm, No. 2002AP1828-W, 2006 WL2290465
(Ct.App., Aug. 10, 2006)(final publication decision pending)(discussing
“ethical tension” in the attorney’s raising and
then deflating his client’s issues).
Nevertheless,
the rule has been adopted, and has withstood constitutional scrutiny.
Thus,
the general statement in SCR 20:1.2 that an attorney should abide
by his client’s decisions, should not trump Rule 809.32,
which expressly concerns no-merit reports, and says that the report
must be filed despite the client’s wishes.
If
this decision is published as recommended, attorneys will be in
an untenable position whenever a client says he rejects all three
of his available options. The Constitution and Rule 809.32 require
that a no-merit report be filed; however, this decision says that
it violates the rules of professional responsibility to do so.
It
will not take long for prisoners who have no arguably meritorious
issues for appeal to realize that they can throw a wrench in the
justice system, merely by expressly instructing their attorneys
not to file no-merit briefs.
-
David Ziemer
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David
Ziemer can be reached by email.
