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No-Merit Report – Client’s Options

State ex rel. Perry Van Hout v. Endicott, 2006 WI App 196, PFR filed 10/11/06
For Van Hout: Robert R. Henak


¶23      Where a defendant has specifically directed counsel not to file a no-merit report after being advised of his or her options, counsel is not free to ignore the defendant’s direction. We discussed the nature of the attorney-client relationship in State v. Divanovic, 200 Wis. 2d 210, 224-25, 546 N.W.2d 501 (Ct. App. 1996) (citations and footnotes omitted):

Supreme Court Rule 20:1.2 (West 1996) entitled “Scope of Representation,” recites, in part, that “A lawyer shall abide by a client’s decisions concerning the objectives of representation.” However, the comment that follows provides that such limits on the objectives of representation must follow consultation between the lawyer and the client.  SCR 20:1.2 cmt. This consultation requirement was followed in this case as our discussion on the previous issue demonstrates. Thus [counsel] was ethically bound to abide by Divanovic’s instructions.The case law is in accord. The attorney-client relationship is one of agent to principal, and as an agent, the attorney must act in conformity with his or her authority and instructions and is responsible to the principal if he or she violates this duty. A defendant who insists on making a decision which is his or hers alone to make in a manner contrary to the advice given by the attorney cannot subsequently complain that the attorney was ineffective for complying with the ethical obligation to follow his or her undelegated decision. [5]

The record in this matter reveals that Van Hout and Maroney consulted about his postconviction options, and Van Hout exercised his right to decline a no-merit report. Under Divanovic, Maroney was not free to ignore Van Hout’s wishes, and she properly put the issue before this court via a motion to withdraw.…

¶37      If a defendant does not want a no-merit report, the defendant has three choices: fire counsel and proceed pro se, fire counsel and hire private counsel if financially feasible, or direct that the file be closed. But a defendant cannot simply insist that appointed counsel pursue an advocacy appeal under Wis. Stat. Rule 809.30 despite counsel’s view that such an appeal would lack arguable merit. Jones v. Barnes, 463 U.S. 745, 751-53 (1983) (counsel must exercise professional judgment in the manner in which he or she represents the defendant). And, a defendant cannot alternatively insist on different appointed counsel who will write a brief the way the defendant wants it written. Finally, a defendant cannot forbid appointed counsel from filing a no-merit report and then claim that counsel has abandoned him or her when counsel moves to withdraw from the representation. We will not allow a defendant to play games in order to get something that the defendant is not entitled to have or to engage in an endless go-round with this court over the course of postconviction proceedings. That is what is going on here, and we will not play that game.

The case does not involve the current no-merit rule, whose wording in pertinent part is as follows, 809.32(1)(b)2: “The attorney shall inform the person that a no-merit report will be filed if the person either requests a no-merit report or does not consent to have the attorney close the file without further representation by the attorney. …” The court notes the changed wording and expressly says that “it is not necessary for us to discuss the current rule in the context of this habeas petition,” ¶25 n. 6. Still, the new wording seems to make a no-merit report the “default” option; the client can “reject” it all day long, but if he or she doesn’t very clearly and unequivocally “consent” to having the file closed then a no-merit report will be the outcome of the representation. The court has now potentially thrown this construction into doubt with unnecessarily broad language about the client’s right to issue imperatives to counsel. The only authority cited for the unembellished proposition that “counsel is not free to ignore the defendant’s direction” is Divanovic. The latter is an odd little case; fodder for law review articles and ethics treatises but not the sort of case that you’d want to cite expansively. Divanovic repeatedly refused to come out of his cell for court appearances and emphatically instructed counsel “not to participate in the proceedings.” Counsel duly obliged, which meant that in effect the trial was conducted without adversarial representation. The result in that case may or may not have been the correct one. (Really: what would you be inclined to do if your client insisted that you sit on your hands? There isn’t an easy answer. Either deny client autonomy or deny necessity of your function.) But that situation isn’t the same as processing a no-merit appeal, nor is one circumstance self-evidently comparable to the other. Yet the court uncritically cites Divanovic for the idea that counsel must abide by the client’s directive, and then uncritically yokes Van Hout to that principle. That principle simply can’t be correct in its broad formulation, because it would entirely do away with the idea that the great majority of litigation decisions are delegated to counsel. The client can’t tell you how (or even whether) to examine a particular witness, for one obvious example. The key qualifier is found in Divanovic itself, but stressed by neither that court nor this one, and it relates to the defendant’s “making a decision which is his or hers alone to make.” In Divanovic the court apparently assumed without discussion that whether or not to contest the state’s case at all was the defendant’s right alone to make. That might be correct, though it’s an awfully brazen assumption. And perhaps the court in Van Hout similarly assumed that the decision whether to authorize a no-merit report is the defendant’s alone. If so, then the current rule is in doubt. Or it may be that the court mis-read Divanovic whose language is indeed perniciously broad. We’ll see.

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