Skip Maine state header navigation

Agencies | Online Services | Help
In re William P.
Download as PDF
Back to the Opinions page

MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 25
Docket:	Pis-00-264
Submitted
on Briefs:	December 13, 2000
Decided:	January 31, 2001

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.




IN RE WILLIAM P.


PER CURIAM

	[¶1]  The father of William P. appeals from a judgment of the District
Court (Dover-Foxcroft, Gunther, J.) terminating his parental rights.  The
father requested that his attorney, who represented him in this and a
previous termination proceeding, appeal the termination order.  The
attorney signed and filed a notice of appeal and submitted a brief to this
Court stating:  "Counsel for appellant has reviewed the record and finds no
issue worthy of appeal."  This brief resembles a so-called "Anders brief,"
which a court-appointed criminal defense attorney may file if he finds his
client's appeal to be frivolous.  See Anders v. California, 386 U.S. 738, 744
(1967).  The Supreme Court established the following procedure for counsel
in such circumstances:
[I]f counsel finds his case to be wholly frivolous, after a
conscientious examination of it, he should so advise the court
and request permission to withdraw.  That request must,
however, be accompanied by a brief referring to anything in the
record that might arguably support the appeal.  A copy of
counsel's brief should be furnished the indigent and time
allowed him to raise any points that he chooses; the court-not
counsel-then proceeds, after a full examination of all the
proceedings, to decide whether the case is wholly frivolous.  If it
so finds it may grant counsel's request to withdraw and dismiss
the appeal insofar as federal requirements are concerned, or
proceed to a decision on the merits, if state law so requires.  On
the other hand, if it finds any of the legal points arguable on
their merits (and therefore not frivolous) it must, prior to
decision, afford the indigent the assistance of counsel to argue
the appeal.
Id.   The Supreme Court of the United States has recently qualified Anders
and held that "the States are free to adopt different procedures, so long as
those procedures adequately safeguard a defendant's right to appellate
counsel."  Smith v. Robbins, 528 U.S. 259, 265 (2000).
	[¶2]  An attorney is bound only to provide ethical representation.  See
State v. Gilcott, 420 A.2d 1238, 1240 (Me. 1980) ("Counsel have no duty to
support a motion having no basis in fact . . . .");  4 M.R.S.A. § 806 (1989)
(requiring Maine attorneys to swear not to "wittingly or willingly promote or
sue any false, groundless or unlawful suit nor give aid or consent to the
same").  The Rules of Professional Responsibility do not compel an attorney
to advance arguments if the attorney lacks a good faith belief that the
arguments are valid.  See M. Bar R. 3.5(c)(1) (providing that an attorney may
withdraw if "[t]he client insists upon presenting a claim or defense that is
not warranted under existing law and cannot be supported by good faith
argument for an extension, modification, or reversal of existing law").
	[¶3]  In this case there is no indication that the father's attorney took
such basic and minimal steps as furnishing a copy of the brief to the father
or notifying the father of his right to seek appointment of other counsel or
advising the father of his right to raise issues on his own.  We do not today
decide the applicability of Anders to these proceedings or the precise
procedure to be followed by parents' counsel in an appeal from an order
terminating parental rights when counsel is of the opinion that the appeal is
without merit.  However, we will stay further proceedings on this appeal
until the father's attorney complies with the following procedure:  If the
father's attorney believes in good faith that there is no basis for appeal, he
shall affirmatively represent within fourteen days of the date of this opinion
that he has (1) served his client with a copy of his brief and (2) advised his
client that, if the client believes he has valid grounds for appeal, he has
fourteen days to file with the Clerk of the Law Court a description of the
grounds he wishes to raise on appeal and a request for the appointment of
new counsel if he desires new representation.{1}
	The entry is:

Judgment withheld pending further briefing
consistent with this opinion.

Attorney for appellant: Randy G. Day, Esq. P O Box 58 Garland, ME 04939 Attorneys for appellee: G. Steven Rowe, Attorney General Matthew Pollack, Asst. Attorney General Geoffrey Goodwin, Asst. Attorney General 6 State House Station Augusta, ME 04333-0006 Guardian ad Litem: Tonya Johnson, Esq. C.W. & H.M. Hayes P O Box 89 Dover-Foxcroft, ME 04426
FOOTNOTES******************************** {1} . We invite the Attorney General to submit a brief commenting on the applicability of Anders and what procedure the Attorney General would propose in these cases. The brief could also address whether, in this case, there is sufficient evidence in the record supporting the judgment and whether the judgment reflects any errors of law.