Ethical Issues in Abuse, Neglect, Dependency Parental Appeals Rick - - PDF document

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Ethical Issues in Abuse, Neglect, Dependency Parental Appeals

Rick Croutharmel, Attorney at Law October 29, 2020

Overview

• Joint Briefs
• Lost Clients
• Withdrawing Appeals
• Getting Fired

Joint Briefs

• What is a joint brief?

– You and another party join to file one brief. – Not necessarily two parents.

• Authority

– Appellate Rule 5: Joinder of Parties on Appeal.

• Must follow this procedure.
• Thereafter, treated as a single appellant.
• See also Appellate Rule 26(e) (briefs).

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Joint Briefs cont’d

• Appellate Rule 5 Procedure

– Each party must file notice of appeal per Appellate Rule 3.1. – The joining parties must file and serve notice of appellate joinder in the trial court. – Proceed as if one party thereafter.

Joint Briefs cont’d

• Criteria

– Both parties (clients) must agree. – Must have same position on appeal as at trial. – Must follow procedure of Appellate Rule 5. – Usually, both parties must have appealed or both parties must be appellees.

• But see In re E.H., 227 N.C. App. 525, 742 S.E.2d

844 (2013) (Civil Rule 41 case).

Lost Clients

• 2003 Formal Ethics Opinion (FEO) 16 (July

16, 2004)

– Addresses attorney’s duties in a juvenile action when the attorney’s client disappears. – See also RPC 1.2(a): Scope.

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Lost Clients cont’d

– FEO 16 references RPC 223

• Endeavor to find and communicate with client.
• If can’t find client and no communication within

reasonable period (6 months), you are constructively discharged.

• Make MTW and serve client as best you can.
• Don’t advocate a particular position if MTW denied.

– Usually not done at the appellate level because

• f speed at which appeals move.

Lost Clients cont’d

• No merits briefs

– Requires interaction with client during the briefing stage of the appeal. – Must endeavor to find client’s address and mail to him/her the necessary no-merits documents. – Use every address listed for client in the record. – Keep appellate court apprised.

Withdrawing an Appeal

• Must adhere to client’s wishes (RPC 1.2).
• Withdrawal notice/motion must be in

writing and must be signed by client.

• File in both trial and appellate courts.
• See Appellate Rule 37(e).

– Pre-record: may be unilateral (notice). – Post-record: must have consent of parties and permission of court (motion).

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Client Wants to Fire You

– Must move to withdraw if client asks you to withdraw.

• Does not matter how good their chances of success.
• Does not matter if you think it is a bad idea (as long

as client is competent).

– Must have court permission (motion).

Questions?

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