No Merit Case Analysis

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The ultimate decision in this case may be correct, but the court’s reasoning will place appellate attorneys in an untenable position.

The court cannot be faulted for finding that the client’s behavior in this case — refusing all three of his options and then refusing to accept mail from his attorney — is unreasonable and constitutes forfeiture of his rights.

However, the court goes astray when it speaks of Van Hout’s exercising his “right to decline a no-merit report”; there is no such right.

The attorney in this case should have filed a no-merit brief, notwithstanding his client’s express directive not to. The plain language of Rule 809.32 does not allow an attorney to move to withdraw in these circumstances without filing a brief, and it gives defendants no right to decline a no-merit report.

Rule 809.32(1)(a) provides, in relevant part, “If an attorney … concludes that a direct appeal … would be frivolous and without any arguable merit …, and the person requests that that a no-merit report be filed or declines to have the attorney close the file …, the attorney shall file … a no-merit report (emphasis added). ”

Subection (1)(b)1 states that the client shall be informed he has only three options: no-merit report; close the file without an appeal; close the file and the client can proceed pro se or with retained counsel.

It is clear from the statute that a defendant has no right to decline a no-merit report; use of the word “shall” in subsec. (1)(a) means that a no-merit report is the mandatory course of action if the client refuses his other two options: close the file without action; or proceed pro se or with retained counsel.

Furthermore, the disjunctive “or” after “the person requests that a no-merit report be filed” clearly contemplates that such reports shall be filed if appropriate, despite the objection of the client.

However, at no point in the opinion does the court set forth the text of the rule, much less reconcile its reasoning to it.

The effect of the holding, thus, is to create a fourth option for defendants — have the attorney move to withdraw, without filing a brief — even though that is not permitted by the rule.

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Whenever a client files a no-merit brief, there is an ethical tension involved. The court of appeals recently noted this in its decision in State of Wisconsin ex rel. Ford v. Holm, No. 2002AP1828-W, 2006 WL2290465 (Ct.App., Aug. 10, 2006)(final publication decision pending)(discussing “ethical tension” in the attorney’s raising and then deflating his client’s issues).

Nevertheless, the rule has been adopted, and has withstood constitutional scrutiny.

Thus, the general statement in SCR 20:1.2 that an attorney should abide by his client’s decisions, should not trump Rule 809.32, which expressly concerns no-merit reports, and says that the report must be filed despite the client’s wishes.

If this decision is published as recommended, attorneys will be in an untenable position whenever a client says he rejects all three of his available options. The Constitution and Rule 809.32 require that a no-merit report be filed; however, this decision says that it violates the rules of professional responsibility to do so.

It will not take long for prisoners who have no arguably meritorious issues for appeal to realize that they can throw a wrench in the justice system, merely by expressly instructing their attorneys not to file no-merit briefs.

– David Ziemer

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David Ziemer can be reached by email.