Opinion
File No. 1511000666
07-12-2016
State of Delaware, v. J.R.M. Respondent.
ORDER
Pre-trial Motion by Non-Attorney Parent to Represent Juvenile-Respondent
ORDER
This is the Court's decision on a matter of first impression regarding a non-attorney parent's request to represent their minor child with the assistance of licensed counsel in a juvenile delinquency trial.
BACKGROUND
On November 17, 2015, the State of Delaware ("State") filed a Petition Alleging Delinquency asserting that sixteen-year-old J.R.M. ("Respondent") committed an act of Assault Second Degree. That same day, John X. Denney, Jr., Esq. ("Mr. Denney") filed an Entry of Appearance on behalf of the Respondent.
On January 22, 2016, Mr. Denney sent a letter to then-presiding Judge Kenneth Millman of the Sussex County Family Court requesting that the Respondent's case be scheduled for a case review hearing rather than trial due to a variety of pre-trial issues. The State joined in Mr. Denney's request. That same day, the request was granted.
On March 21, 2016, Judge Millman held a case review hearing. During the hearing, the Respondent's father, M.M. ("Mr. M."), asserted that he would like to represent the Respondent with Mr. Denney serving as either co-counsel or "backup counsel." The State indicated that it was opposed to Mr. M's request. At the conclusion of the hearing, Judge Millman directed both the State and Mr. M to submit memoranda of law in support of their respective positions.
On March 24, 2016, Judge Millman issued a Letter Order reviewing the events of the March 21 hearing. That same day, Judge Millman recused himself from the Respondent's case.
Judge Millman determined that the both the State and Mr. M would have four weeks in which to file their memoranda of law.
On or about April 8, 2016, Mr. Denney filed a letter with the Court asserting that Judge Millman had already granted Mr. M's request to represent the Respondent with Mr. Denney serving "back-up" counsel. Mr. Denney requested that the Court provide clarification regarding his role. Mr. Denney suggested that Mr. M had a vision of his role which differed from that of Judge Millman, and he found Mr. M's proposal to be unacceptable. Lastly, Mr. Denney stated that if he is "not limited to a stand-by counsel role and not a subordinate or co-counsel role," then he shall seek to withdraw from the Respondent's case. Attached to Mr. Denney's letter are copies of the American Bar Association's standards for standby counsel as well as a law review article concerning the role of standby counsel in criminal cases.
On April 25, 2016, the State submitted a response to Judge Millman's March 24 Letter Order contending that Mr. M is not permitted to represent the Respondent, and that it may be in the Respondent's best interests to be appointed a guardian ad litem. In support of its position, the State cites a variety of authority including case law, Rules of the Delaware Supreme Court, and the Family Court Rules of Criminal Procedure.
On May 5, 2016, a Letter Order was issued stating that this Judge was appointed to preside over the Respondent's case; the issue of Mr. M's representation of the Respondent has not been resolved; both Mr. M and Mr. Denney had until May 19, 2016 to submit memoranda of law in support of their respective positions concerning Mr. M's representation of the Respondent; a trial date would not be set until the issue of the Respondent's representation is resolved; and the Respondent's bond is amended to provide that she not have any contact with M.C.
On May 16, 2016, Mr. Denney filed a second letter with the Court reiterating his belief that Judge Millman granted Mr. M's request to represent the Respondent, but adding that Judge Millman's decision was subject to an objection by the State. Mr. Denney requested that Mr. M be permitted to provide his position orally. Lastly, Mr. Denney states that because he remains the attorney of record he does not wish to submit written opposition to the State's memorandum and instead rely on the materials attached to his April 8 letter.
On May 18, 2016, the Court held a hearing to allow Father an opportunity to present his position regarding the legal representation of the Respondent. Present for the hearing were Mr. M, Mr. Denney, Deputy Attorney General Paula Fontello, Esq. ("Ms. Fontello" a.k.a. "the State"), and the Respondent's mother, Mrs. M. The Respondent did not appear.
During the May 18 hearing, Mr. M argued that the legal authority provided by the State in support of its position that his representation of the Respondent would constitute the unauthorized practice of law does not contemplate the representation of a minor by a legal guardian. Mr. M asserted that the authority which permits him to represent the Respondent is the same authority which allows him to decide whether the Respondent accepts a plea agreement. Mr. M further asserted that Judge Millman was not opposed to his request to represent the Respondent; Judge Millman indicated that he was unaware of any law prohibiting a parent from representing their child; and Judge Millman's statements during the March 21 hearing constitute precedent in support of his position.
Mr. M stated that the aspects of the Respondent's case which he seeks to control include the questioning of certain witnesses, possibly providing opening and/or closing statement(s), and making final decisions. Mr. M envisions that Mr. Denney would also question witnesses, and that both he and Mr. Denney would make objections; however, Mr. M stated that, because he is not a licensed attorney, he would not consider Mr. Denney to be his "co-counsel." Mr. M asserted that the Respondent does not have any role in making decisions concerning her representation. Mr. M does not have a law degree.
Mr. Denney raised numerous ethical issues which might arise if Father is permitted to represent the Respondent. First, Mr. Denney observed that he represents the Respondent, but was retained by her parents. As such, Mr. Denney believes that he would be faced with an ethical dilemma should Mr. M's decisions differ from those of the Respondent. Additionally, Mr. Denney observed that the Respondent is seventeen-years-old, intelligent, mature, and able to assist with her representation. For these reasons, Mr. Denney believes that the Respondent should have some say in decisions concerning her case, which is contrary to Mr. M's position. Lastly, Mr. Denney asserted that he is obligated to make decisions which are in the Respondent's best interests, and that an ethical issue may arise if his and/or the Respondent's wishes differ from those of Mr. M.
The State maintained that the preservation of the Respondent's liberties are paramount, and that it would be the Respondent who would be required to serve a potential sentence rather than her parents. Consequently, the State seeks to ensure that the Respondent is adequately represented.
DISCUSSION
Preliminarily, the Court observes that both Mr. Denney and Mr. M believe that Judge Millman granted Mr. M's request to represent the Respondent at the March 21, 2016 case review hearing. In an effort to resolve this matter, the Court will review the events of the hearing. Thereafter, the Court will address the merits of the State's objections.
March 21, 2016 Case Review Hearing
Following Mr. M's oral request to represent the Respondent, Judge Millman stated that it would be in the Respondent's best interests to be represented by a licensed attorney, but that he is not familiar with any prohibition against Mr. M's proposal. Thereafter, both Mr. Denney and Ms. Fontello discussed some of the problems which might arise if Mr. M is permitted to represent the Respondent including differences of opinion concerning tactical decisions in the case, the Respondent's ability to voice her opinion over Mr. M's objection, and the unauthorized practice of law. Due to the novelty of Mr. M's proposal as well as the fact that the State was not made aware of Mr. M's proposal until the morning of the March 21 hearing, Judge Millman granted both the State and Mr. M time to submit memoranda in support of their respective positions. At the conclusion of the hearing, Judge Millman scheduled a trial for June 13, 2016, and he amended the Respondent's bond to provide that she not have contact with M.C.
Upon Mr. Denney indicating that the Respondent has her own opinion regarding issues affecting her case, Judge Millman inquired as to what the Respondent's opinion entails. Mr. M then interrupted the Court and stated that the Respondent would not be making any statements.
As the foregoing illustrates, Judge Millman initially appeared agreeable to Mr. M's request, but determined that he wanted to receive a memorandum of law from the State before making a ruling because he was not familiar with the issue at hand. Alternatively, it might be argued that Judge Millman granted Mr. M's request, but that the State made an objection which Judge Millman did not want to address until he received the State's memorandum of law. In any event, there would be no reason for Judge Millman to order the submission of memoranda if he had already made a conclusive ruling on Mr. M's request. Therefore, the Court will address the merits of the State's objection.
Positions of the Parties
The question whether a non-attorney parent may represent their minor child with the assistance of a licensed attorney in a juvenile delinquency proceeding appears to be one of first impression in Delaware. In its memorandum, the State raises multiple objections to Mr. M acting as the Respondent's counsel including, but not limited to, issues related to the unauthorized practice of law, ethical conflicts, public policy, and the infringement of the Respondent's due process rights.
Mr. M argues that the legal authority provided by the State does not contemplate the representation of a minor by a legal guardian. Additionally, Mr. M asserts that the authority which permits him to represent the Respondent is the same authority which allows him to decide whether the Respondent accepts a plea agreement. Lastly, Mr. M contends that Judge Millman's statements during the March 21 hearing constitute precedent in support of his position.
Unauthorized Practice of Law
As a preliminary matter, the Court must define the "unauthorized practice of law." As cited by the State, Rule 4(c) of the Rules of the Board on the Unauthorized Practice of Law provides criteria for the evaluation of complaints regarding the unauthorized practice of law, as follows:
[i]n evaluating any information involving the possible unauthorized practice of law in the State of Delaware, Disciplinary Counsel shall initially determine whether the person which is the subject of such information is otherwise authorized to practice law in the State of Delaware. If not, Disciplinary Counsel shall then determine whether such person has possibly engaged in any of the following types of conduct: (i) giving legal advice on matters relating to Delaware law, (ii) drafting legal documents or pleadings for a person or entity (other than one's self) reflecting upon Delaware law, for use in a Delaware legal tribunal or governmental agency, unless the drafting of such documents or pleadings has been supervised by a person authorized to practice law in the State of Delaware, (iii) appearing as legal counsel for, or otherwise representing, a person or entity (other than one's self) in a Delaware legal tribunal or governmental agency, (iv) holding one's self out as being authorized to practice law in the State of Delaware, (v) engaging in an activity which has traditionally been performed exclusively by persons authorized to practice law, and (vi) engaging in any other act which may indicate an occurrence of the unauthorized practice of law in the State of Delaware as established by case law, statute, ruling, or other authority. The foregoing description of types of conduct are to be used as general guidelines for evaluation by Disciplinary Counsel, and not as definitions of the unauthorized practice of law.
Del. R. Unauth. Prac. Bd. Rule 4(c) (2016).
Although the conduct described by Rule 4(c) is not to be used as definitions of the unauthorized practice of law, because the role Mr. M proposes for himself involves "appearing as legal counsel for, or otherwise representing, a person or entity (other than one's self) in a Delaware legal tribunal . . ." as well as "engaging in any other act which may indicate an occurrence of the unauthorized practice of law in the State of Delaware," Rule 4(c) lends support for the State's position that Mr. M's proposal would constitute the unauthorized practice of law.
Fortunately, the Delaware Superior Court has provided an explicit definition of the unauthorized practice of law. "The unauthorized practice of law 'occurs where there is an exercise of judgment on a legal matter by someone acting in a representative capacity ... if it occurs in Delaware, on a matter of Delaware law, by someone not admitted to the Delaware Bar.'"
Townsend v. Integrated Manufacturing and Assembly, 2013 WL 4521087, at *1 (Del. Super. July 30, 2013) (citations omitted).
Mr. M's description of his role makes clear that his representation of the Respondent would constitute the practice of law in Delaware. Specifically, Mr. M's cross-examination of witnesses, providing an opening and/or closing statement, and final decision-making authority would involve the exercise of his judgment on legal matters by someone acting in a representative capacity who is not admitted to the Delaware bar. Hence, the Court finds that Mr. M's proposal does constitute the unauthorized practice of law unless there is an exception for a parent representing their minor child either with or without the assistance of a licensed attorney.
Rules of the Delaware Supreme Court
The State argues that the Delaware Supreme Court has exclusive jurisdiction over the practice of law in Delaware, and that there is no exception permitting a parent to act on their child's behalf under the Supreme Court Rules. Specifically, the State cites Supreme Court Rule 12 for the proposition that the only exception to a non-attorney acting as legal counsel applies to pro se litigants. In pertinent part Supreme Court Rule 12(a)(i) states, "[e]xcept in the case of a party appearing pro se, all papers filed with the Court shall be signed by an attorney who is an active member of the Bar of this Court and who maintains an office in Delaware for the practice of law . . ."
Del. Sup. Ct. R. 86(c)(6) (2016).
Del. Sup. Ct. R 12(a)(i) (2016).
Neither Mr. M nor Mr. Denney responded directly to this argument. In fact, Mr. M admits that the authority cited by the State does not contemplate the representation of a minor by their legal guardian; and Mr. Denney has only set forth arguments against Mr. M acting as Respondent's counsel.
When interpreting the Rules of the Delaware Supreme Court, it is the duty of the interpreting court "to reject a result which produces an unreasonable consequence, and to adopt an interpretation which gives a sensible and practical meaning to the rule and the purpose for which it was intended." Here, the Court agrees that Supreme Court Rule 12 does not provide an exception for a parent to act on their child's behalf. To the contrary, it appears that the primary purpose of Supreme Court Rule 12 is to limit the persons who are authorized to sign papers filed with the Court. Consequently, interpreting the Rule to contain an additional exception for a parent acting on behalf of their child would be contrary to the purpose for which the Rule was intended.
Petition of Nenno, 472 A.2d 815, 819 (Del. 1983).
Although it appears at first glance that Supreme Court Rule 12 only applies to the filing of papers, this Court does not interpret the Rule so narrowly. Certainly, it was not the Delaware Supreme Court's intention to prohibit non-attorneys from filing papers, but allow non-attorneys to otherwise provide representation on behalf of another person. Furthermore, in the event that Mr. M's request is granted, Mr. Denney withdraws from his representation, and Respondent wishes to appeal this or any other decision concerning her delinquency charge, it may be necessary for Mr. M to file papers with the Supreme Court. Thus, the full scope of Mr. M's proposal could potentially involve action which is directly prohibited under Delaware law.
See Del. Sup. Ct. R. 7 (2016)(an appeal shall be commenced by a notice of appeal); See also 10 Del. C. § 1051(b) (2016)(from any order, ruling, decision or judgment of the Family Court in any criminal proceeding, there shall be the right of appeal in the first instance to the Superior Court with the further right of appeal to the Supreme Court).
Nor may Mr. M rely on the exception for pro se litigants as authority for his ability to act on the Respondent's behalf. This is because a juvenile Respondent must have some involvement in the decision to waive their right to counsel. In this case, however, Mr. M has prevented the Respondent from having any involvement in the decisions affecting her case including making statements to the Court. As a result, the Respondent's right to proceed pro se has not been properly invoked; and Mr. M cannot step into the Respondent's shoes in a pro se capacity. Alternatively, it might be argued that by retaining Mr. Denney, a licensed Delaware attorney, the Respondent has decided not to proceed pro se. In either case, Mr. M is not able to rely on the Respondent's ability to proceed pro se as the basis for his argument. This finding is supported by cases in other jurisdictions holding that parents are not permitted to appear pro se on behalf of their minor children in civil cases.
See A.S. v. State, 923 N.E.2d 486, 491 (Ind. Ct. App. March 25, 2010); State ex rel. Juvenile Dept. of Marion County v. Afanasiev, 674 P.2d 1199, 1200 (Or. Ct. App. Jan. 18, 1984); In re D.L., 999 S.W.2d 291, 294 (Mo. Ct. App. Aug. 17, 1999)(determination of whether juvenile's waiver of counsel is valid involves involves inquiry into juvenile's age, experience, education, background, intelligence, and capacity to understand the warning given); See also Smith v. State, 918 A.2d 1144, 1148 (Del. 2007)(juvenile does not need to consult with a parent or other interested adult prior to waiving rights).
See Smith v. State, 918 A.2d 1144, 1149-50 (Del. 2007).
See In re C.S., 874 N.E.2d 1177, 1190 (Ohio 2007)(because even the best-intentioned parents will lack the skill and familiarity with the law and procedure to adequately represent their children in delinquency proceedings, they may not do so); Shepherd v. Wellman, 313 F.3d 963, 970 (9th Cir. 2002)(parents cannot appear pro se on behalf of their minor children because a minor's personal cause of action is her own and does not belong to her parents or representatives).
The State further argues that Supreme Court Rule 12 is instructive in this case because Supreme Court Rule 101 requires all Delaware trial courts to adopt rules consistent with applicable Rules of the Delaware Supreme Court. In turn, the State points to Rule 61 of the Family Court Rules of Criminal Procedure as the source of authority regarding who may provide legal counsel in the Family Court which is consistent with Supreme Court Rule 12.
See Del. Sup. Ct. R 101(b) (2016).
Family Court Rules of Criminal Procedure Rule 61
Next, the State asserts that Rule 61 of the Family Court Rules of Criminal Procedure does not authorize a non-attorney to provide legal representation on behalf of another. Rule 61(a) states:
[e]xcept as provided in paragraph (b) of this Rule, only an active member of the Bar of the Supreme Court of this State who maintains an office in
Delaware for the practice of law as defined by Delaware Supreme Court Rule 12(d) shall be entitled to practice as an attorney in this Court.In turn, Rule 61(b) governs the requirements for the admission of an out-of-state attorney pro hac vice. There is no discussion of either pro se litigants or the representation of minors under subsection (b).
Del. Fam. Ct. Cr. R. 61(a) (2016).
Again, neither Mr. M nor Mr. Denney specifically addressed this argument. At first glance, Rule 61 appears unambiguous: with the exception of out-of-state attorneys admitted pro hac vice "only" active members of the Delaware bar are permitted to practice as an attorney in this Court. Despite the seemingly plain language of Rule 61, however, the Court will look to other Rules of Criminal Procedure for guidance.
Rule 57 provides that if there is no procedure specifically prescribed by rule, then the Family Court may proceed in any lawful manner not inconsistent with the criminal rules, Rules of the Supreme Court, or any applicable statutes. Accordingly, in light of this Court's determination that the only exception to Supreme Court Rule 12 applies to pro se litigants, the Court finds that allowing Mr. M to act as the Respondent's counsel would be contrary to Rule 57, Rule 61, and the Rules of the Delaware Supreme Court.
Del. Fam. Ct. R. 57 (2016).
Due Process
In addition to the foregoing, the State argues that Mr. M's proposal regarding his representation of the Respondent interferes with the Respondent's right to counsel including her ability to waive counsel and proceed pro se.
Mr. Denney did not address this argument. Mr. M, on the other hand, appears to be of the opinion that he is able to dictate any decisions posed to the Respondent by virtue of his parentage.
As noted by the State, "[j]uveniles in delinquency proceedings are entitled to the same essential and fundamental due process rights as adult criminal defendants." This includes the right to counsel as well as the right to proceed pro se. Furthermore, as noted above, a juvenile Respondent must have some involvement in the decision to waive their right to counsel. In order for a Respondent to effectively waive their right to counsel, the trial court must: "1) determine that the Respondent has made a knowing and voluntary waiver of his constitutional right to counsel; and 2) inform the Respondent of the risks inherent in going forward in a criminal trial without the assistance of legal counsel."
Smith v. State, 918 A.2d 1144, 1148 (Del. 2007).
See State in Interest of A.L.S., 1988 WL 56872, at*1 (Del. Fam. Ct. March 9, 1988).
See Smith v. State, 996 A.2d 786, 789-90 (Del. 2010).
Supra Footnote 9.
See Stigars v. State, 674 A.2d 477, 479 (Del. 1996) (citations omitted).
The Court agrees that the type of representation envisioned by Mr. M interferes with the Respondent's right to counsel. Of greatest significance is Mr. M's refusal to allow the Respondent to address the Court. In the absence of meaningful dialogue between the Court and the Respondent, the Respondent is not able to exercise her right to either retain counsel or proceed pro se.
Similarly, Mr. M's statements indicating that he would have final decision-making authority, including the ability to make decisions contrary to those of both the Respondent and Mr. Denney, also interfere with the Respondent's right to counsel. Since a juvenile Respondent is not required to consult with a parent or other interested adult prior to waiving their rights, it follows that the juvenile Respondent retains the right to make the final decision regarding, among other things, the right to retain counsel.
See Smith v. State, 918 A.2d 1144, 1149-50 (Del. 2007); But see In re C.S., 874 N.E.2d 1177, 1191 (Ohio 2007).
Public Policy
The State further argues that Mr. M acting as the Respondent's counsel would be contrary to public policy. In Townsend v. Integrated Manufacturing and Assembly, the Delaware Superior Court addressed the public policy concerns raised by non-attorneys exercising judgment on legal matters in a representative capacity, as follows:
[t]he policy against unauthorized practice of law exists to insure the public's enjoyment of representation by "individuals who have been found to possess the necessary skills and training to represent others." Thus, a non-party who is not "a member of the Bar of this Court, a party appearing pro se, or an attorney admitted pro hac vice," may not participate in an appeal in this Court.
Since Mr. M is neither a member of the Delaware bar nor an attorney admitted pro hac vice, Mr. M's representation of the Respondent would not be equivalent to the Respondent proceeding pro se, and the role Mr. M envisions for himself constitutes the practice of law, the Court agrees that Mr. M's proposal regarding the Respondent's representation would be contrary to public policy as articulated in Townsend.
Delaware Rules of Professional Conduct
Lastly, the State contends that Mr. M's representation of the Respondent with Mr. Denney acting as either stand-by or co-counsel would contravene the Delaware Lawyers Rules of Professional Conduct. Specifically, the State asserts that any assistance provided by Mr. Denney to Mr. M would violate Rule 5.5(a) which prohibits a lawyer from assisting another person seeking to practice law in violation of a jurisdiction's regulation of the legal profession. The State also asserts that Mr. Denney's receipt of compensation from Mr. M interferes with Mr. Denney's independent professional judgment in violation of rule 1.8(f)(2).
See Del. R. Prof. Conduct 5.5(a) (2016).
See Del. R. Prof. Conduct 1.8(f) (2016).
Mr. M did not address either of these issues. Conversely, Mr. Denney agrees that Mr. M's proposal would interfere with his professional judgment as well as require him to either seek compensation from someone other than Mr. M or create a new compensation agreement with Mr. M.
Based upon the Court's finding that Mr. M's proposal does not fit within any of the exceptions to the various rules prohibiting a non-attorney from practicing law in Delaware, the Court agrees that Mr. Denney would violate Rule 5.5(a) by assisting Mr. M with representing the Respondent. The Court also agrees that, in light of Mr. M's assertions that he would have final decision making authority, Mr. Denney's acceptance of compensation from Mr. M would interfere with Mr. Denney's professional judgment, the scope of Mr. Denney's representation, and the lawyer-client relationship between Mr. Denney and the Respondent.
See Del. R. Prof. Conduct 1.8(f)(2) (2016)(a lawyer shall not accept compensation for representing a client unless there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship) (emphasis added).
See Del. R. Prof. Conduct 1.2(a) (2016)(a lawyer shall abide by a client's decisions concerning the objectives of representation) (emphasis added).
Supra Footnote 19.
CONCLUSION
For the reasons discussed above, Mr. M's request to represent the Respondent is denied regardless of whether he provided representation independently or with Mr. Denney acting as either stand-by or co-counsel. As a matter of first impression, the Court looks to other jurisdictions for guidance. In doing so, the Court is strongly persuaded by the reasoning of In re C.S. where the Ohio Supreme Court conducted a thorough analysis of the juvenile court system and concluded that, despite the existence of an Ohio statute explicitly granting parents the ability to represent their children, such representation offends a child's right to counsel because non-attorney parents lack the knowledge and skill required to provide effective representation. In line with this reasoning, this Court finds that Mr. M's representation of the Respondent would constitute the unauthorized practice of law in Delaware absent an authoritative exception, and that the Court is unaware of any exception to the Delaware Supreme Court Rules, Family Court Rules of Criminal Procedure, Delaware case law, or Delaware statutes granting a parent the right to represent their minor child either with or without the assistance of a licensed attorney.
See In re C.S., 874 N.E.2d 1177, 1188-90 (Ohio 2007). --------
Finally, within ten days of his receipt of this Order, Mr. Denney shall notify the Court whether he will remain as the attorney of record in this case. The Court will then determine whether this matter needs to be referred to the Public Defender's Office prior to scheduling a trial date.
IT IS SO ORDERED this 12th day of July 2016.
/s/_________
PETER B. JONES, JUDGE PBJ/zmb