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TPR – Self-Representation – Standards

Dane County DHS v. Susan P.S., 2006 WI App 100, PFR filed 5/15/06 (published)

Issue/Holding1: The same “self-representation competency standards developed in … criminal cases” applies to TPRs, ¶¶9-16.

Standards summarized, ¶¶17-23. Though much of this recitation is fairly abstract, the following embellishment of Pickens v. State, 96 Wis. 2d 549, 292 N.W.2d 601 (1980) may be of interest, ¶20 n. 3: “we understand Pickens to be saying that a lack of legal skills, by itself, does not disqualify a person, but if a person has pertinent legal skills, that fact may weigh in favor of competency.”

Issue/Holding2: Rescission of self-representation on the 2nd day of trial based upon 1st-day performance upheld where the person’s bipolar disorder manifestly affected her performance, ¶¶25-44 (“Her questions and arguments were nonsensical. Her behavior was erratic and unruly.”); and, her “courtroom demeanor and tone of voice were inappropriately aggressive,” ¶46.

The court also suggests strongly, if not holds outright, that standby counsel may offer an opinion as to the pro se litigant’s competence, and that a decision to rescind self-representation may be based on such an opinion, ¶53 n.6, and accompanying text. (“We are aware of no legal or logical support for the proposition that the right to self-representation is denied by the mere act of standby counsel opining that a pro se litigant is incompetent.” Ah, you may wonder: What about client confidentiality? What about State v. Jeffrey J. Meeks, 2003 WI 104? That case holds that with respect to a client’s competency during prior representation, “disclosure of even non-verbal communications … violates the attorney-client privilege,” ¶36. Could be that the court doesn’t see standby counsel as bound by client confidentiality, but that seems too much of a stretch. (For one thing, the relationship may be hybridized but it is nonetheless an attorney-client relationship in some form. And, not to press the point, but for authority that standby counsel does have at least a limited effective-assistance obligation, see for example People v. Blair, 115 P.3d 1145 (Cal. 2005).) Could be that the court perceives Meeks as limited to disclosure of prior representation; and that with regard to a current case, State v. Johnson, 133 Wis. 2d 207, 395 N.W.2d 176 (1986) (counsel ethically obligated to reveal doubts as to client’s competency) holds sway. But note that Meeks itself considered that possibility (¶46), and held that Johnson permits counsel to do no more than merely raise the issue of competency: “An attorney’s duty under Johnson demands a very narrow and limited breach of the attorney-client privilege. The attorney is merely obligated to ‘raise the issue [of competency] with the trial court.’ Johnson, 133 Wis. 2d at 220. There is no requirement that the attorney testify about his or her reasons for raising the issue or the opinions, perceptions, or impressions that form the basis for his or her reason to doubt the client’s competence.” Most likely, then, the court of appeals simply didn’t consider the potential impact of Meeks. If it had, it would almost surely been bound to deem standby counsel’s opinion as to competency—which does more than merely raise the issue and is instead necessarily based on disclosure of verbal and non-verbal client communications—off-limits under Meeks. For that matter, ignoring Meeks is just about the only workable solution for one of the most ill-considered, sloppily thought out decisions in recent memory. General discussion, here.

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