A Cautionary Tale for Counsel

On April 28, 2020, the Appellate Division issued a publish opinion that can only be described as a cautionary tale for any counsel seeking to represent a client on a matter to which that counsel does not have sufficient experience or expertise. The Appellate Division addressed this issue in the contested adoption case: In the Matter of the Adoption of a Child by C.J., A-2593-17T2.

As a bit of background, the Supreme Court has previously stated that a parent who may lose his/her parental rights in a contested adoption has the right to counsel. The Appellate Division has since extended that right to counsel to include the right to appellate counsel. The Appellate Division emphasized in prior opinions that “contested adoption proceedings raise important substantive issues and can lead to complicated and involved hearings.”

In the instant matter, the biological mother contested the adoption of her child. After the trial court ruled against the mother, she determined that her best course of action was to appeal. The Appellate Division appointed counsel to represent the mother in the appeal and required the respondent to produce the transcripts for the appeal (of which the conclusions of fact and law was notably not produced).

Appointed counsel for the appellant was not familiar with adoption cases, nor was he seemingly familiar with appeals in general. Counsel submitted a five (5) page brief to the appellate division citing an inapplicable statute and argued that DCPP had not provided “reasonable efforts” to reunify the mother and her daughter. The brief cited no cases and counsel did not exercise his right to file a reply brief after respondent’s brief indicated the correct statute which applies. Moreover, appointed counsel did not question the lack of judicial findings in the transcripts supplied.

The relevant standard in these cases to determine whether there was ineffective appointed counsel was outlined in Appellate Division’s decision:

Generally, a litigant in a termination of parental rights case must demonstrate that "(1) counsel's performance must be objectively deficient - i.e., it must fall outside the broad range of professionally acceptable performance; and (2) counsel's deficient performance must prejudice the defense." N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 307 (2007) (adopting standard for ineffective representation set forth in Strickland v. Washington, 466 U.S. 668, 694 (1984), and adopted in State v. Fritz, 105 N.J. 42, 58 (1987)). The same standard applies to appellate counsel. See N.J. Div. of Child Prot. & Permanency v. R.L.M. (In re R.A.J.), 236 N.J. 123, 153 n.3. If, as here, appellate counsel's representation is severely lacking, it is comparable to a total lack of representation: a structural failure in the process where the litigant need not demonstrate prejudice. Similarly, "[d]eprivation of counsel of choice is considered a 'structural error' not subject to harmless error analysis because the consequences of deprivation are 'necessarily unquantifiable and indeterminate.'" State v. Kates, 426 N.J. Super. 32, 44 (App. Div. 2012) (quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006))

The Appellate Division did not decide the ultimate issue in this case. Instead, the Court made the determination that the level of representation provided by appointed counsel was “tantamount to a total lack of appellate counsel, a structural defect.” It was noted that competent counsel is “particularly crucial when a parent’s ‘invaluable right to raise a child’ is at stake due to the extreme importance of the litigation.” The Court felt the need to intercede as the litigant was “extremely unlikely to be in a position to gage the effectiveness of appellate counsel.”

From a practical standpoint as an attorney, the lesson to learn from this decision is that you must know when you are in over your head. If you are retained or appointed on a matter that is not your area of expertise or one that you are unfamiliar with, the Appellate Division indicated a number of steps that counsel should follow:

  • As counsel you should first educate yourself as to the applicable law. The Court points, as an example, to the “Resources” section on the Judiciary website’s “Attorney’s page.” The “Pro Bono” link has educational material for pro bono assignments defending a number of different matters.
  • If, after educating yourself, you still do not feel comfortable, it is your duty to try and obtain substitute counsel who is competent in the applicable matter.
  • If substitute counsel with the sufficient knowledge cannot be obtained, you have the ethical obligation to inform the appointing court of your inability to handle the case assigned.

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