Ethics Opinion 373
Court-Ordered Representation of Clients in Criminal Domestic Violence Matters Who Are Party to Parallel Civil Protection Order Proceedings
Inquiry
The D.C. Bar Legal Ethics Committee was informed that attorneys appointed pursuant to the District of Columbia's Criminal Justice Act, 11 D.C. Code, §§ 2601 et seq. (2012) (the "CJA"), often represent individual defendants in criminal domestic violence matters who are also respondents in parallel Civil Protection Order ("CPO") proceedings. Typically, these respondents appear in the CPO proceeding pro se because there exists no statutory entitlement to a CJA attorney in civil proceedings. Recognizing that criminal domestic violence matters and parallel CPO proceedings often share a common factual and legal nexus, CJA attorneys often attempt to guide their clients in the CPO hearings without entering an appearance in these matters or otherwise undertaking representation of the respondents in these civil proceedings.
While refraining from entering an appearance in civil proceedings, CJA attorneys may nevertheless attempt to influence portions of these CPO hearings to protect the respondents' rights in the parallel criminal matters. These attempts often involve efforts by CJA attorneys to direct what their clients say or even speaking in court themselves at the CPO hearings.
These facts raise several questions: Are court-appointed CJA attorneys representing clients in criminal domestic violence matters ethically required to enter appearances in parallel CPO proceedings? Relatedly, do the Rules of Professional Conduct allow CJA attorneys—who choose not to enter appearances—to nevertheless guide or influence their clients in the parallel CPO proceedings?1
Applicable Rules
- Rule 1.1(a) (Competence)
- Rule 1.2 (Scope of Representation)
- Rule 1.3(a) (Diligence and Zeal)
- Rule 1.4(b) (Communication)
- Rule 1.5(b) (Fees)
- Rule 4.2(a) (Communication between Lawyer and Person Represented by Counsel)
Factual Overview
A. Entitlement to Counsel Under the CJA
Indigent persons charged with criminal offenses under District of Columbia law are appointed counsel pursuant to the CJA. See 11 D.C. Code, §2601; Scott v. Illinois, 440 U.S. 367 (1979) (explaining that an indigent defendant in criminal proceedings has a right to counsel under the Sixth Amendment of the United States Constitution). The underlying purpose of the CJA is "to insure that persons charged with crimes in the District of Columbia, who are financially unable to obtain an adequate defense ... are provided with legal representation".2 The CJA mandates appointment of counsel for any person charged with a felony, misdemeanor, or other offense involving the possibility of imprisonment in the District of Columbia who cannot afford representation.3
The CJA does not provide for appointment of counsel for defendants in civil proceedings, even those that may have a factual overlap with criminal matters in which a CJA attorney is appointed. While the CJA refers to "cases covered by this Act where the appointment of counsel is discretionary," it does not define such cases. 11 D.C. Code, § 2602.
The District of Columbia Court of Appeals establishes specific standards of performance for attorneys appointed pursuant to the CJA.4 These obligations generally provide that a CJA attorney must "continue to represent the person throughout the proceedings, including disposition of the appeal and of any post-decision proceedings that appointed counsel may elect to initiate … Motions to withdraw are disfavored absent a true conflict between counsel and the client."5 In addition, the Criminal Division of the Superior Court outlines practice standards to ensure CJA attorneys provide competent representation to individuals in criminal cases,6 and recommends these lawyers "counsel[] clients concerning matters related to their case."7
B. The CPO and its Relationship with Associated Criminal Proceedings
The Domestic Violence Unit of the Superior Court handles misdemeanors in which the defendant and complainant have an intra-family relationship, as defined by the D.C. Intrafamily Offenses Act, D.C. Code §§ 16-1001 et seq. (2014). The Unit also handles requests for CPOs by victims of domestic violence. The CPO is a court order issued in a civil proceeding against the perpetrator of any domestic offense misdemeanor or felony. The CPO is issued when a judge determines that the respondent-perpetrator, more likely than not, committed a crime against the petitioner-victim. Among other things, the CPO prohibits the respondent-perpetrator from coming into physical proximity of the petitioner-victim.8
Violation of a Temporary Protection Order ("TPO") or final CPO constitutes criminal contempt, a misdemeanor punishable by a fine, imprisonment for not more than 180 days, or both.9 Also, if the respondent-perpetrator committed a crime while violating the CPO, that conduct constitutes a separate offense which is separately punishable.
The domestic violence incident underlying the request for a CPO is often the subject of a related criminal proceeding. The District of Columbia has a mandatory arrest policy in cases of domestic violence.10The U.S. Attorney's Office for the District of Columbia will typically file criminal charges against a respondent-perpetrator if that individual was arrested for domestic violence. Criminal proceedings arising from the domestic violence incident can occur either before or after the hearing on a temporary protection order or final CPO.
The Public Defender Service for the District of Columbia recognizes that attorneys representing individual defendants in a criminal domestic violence matter may have involvement in a parallel CPO hearing:
Defense attorneys representing clients charged in domestic violence cases may find themselves embroiled in litigation they did not expect. In addition to representing a client in a criminal case stemming from an intra-family offense, the attorney may need to represent that client in civil protection order litigation involving any number of family law issues, or in a criminal contempt trial. 11
Typically, CPO hearings are set within two weeks of the petition requesting temporary relief, and this civil proceeding generally occurs before the related criminal trial.12
In Cloutterbuck v. Cloutterbuck, the District of Columbia Court of Appeals held that CPO proceedings are, by definition, civil in nature, and that indigent respondents in such proceedings are not entitled to counsel appointed under the CJA.13 Recognizing that subsequent violation of an issued CPO could lead to imprisonment, the Cloutterbuck court nevertheless rejected application of the CJA to the CPO hearing: "We find that the possibility of imprisonment as a punishment for eventual violation of a CPO is too remote as of the time the order is entered to trigger a right to counsel. Furthermore, that outcome is contingent upon respondent's own subsequent behavior."14
Analysis
A. The Obligation to Provide Clearly Defined, Competent, and Zealous Representation
CJA attorneys are appointed by the court and the scope of representation is defined by that judicial appointment. Rules of Professional Conduct governing scope and competence provide guidance on the ethical obligations of CJA attorneys handling criminal domestic violence matters associated with parallel CPO proceedings.
When a lawyer establishes a new attorney-client relationship, Rule 1.5(b) requires, inter alia, that the lawyer communicate in writing the scope of representation to the client. Comment [4] to Rule 1.2 further explains that pursuant to such requirement it is also "generally prudent to explain in writing any limits on the objectives or scope of services.".15 Finally, Rule 1.4(b) also requires a lawyer to "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."
Read together, these provisions mandate that the CJA lawyer explain clearly to the client the scope of representation, specifying the particular proceeding in which the lawyer is representing the client. In addition, when the lawyer is aware that certain matters or proceedings are excluded from the scope of representation (either by agreement or through court appointment), the lawyer should inform the client accordingly.16
B. Competency in Criminal Domestic Violence Matters Associated with Parallel CPO Hearings
1. Relationship Between Domestic Violence Criminal Matters and Parallel CPO Hearings
Criminal domestic violence matters associated with parallel CPO hearings typically share a common factual and legal nexus. For example, testimony from the CPO hearing will likely involve the same facts and circumstances at issue in the criminal domestic violence matter; the criminal defendant's ability to invoke her Fifth Amendment rights in one proceeding may be influenced by how and whether she testifies in the other proceeding; both matters may share common discovery materials; and the disposition of the CPO proceeding could impact release status or plea negotiations in the criminal proceeding. For these reasons, the D.C. Public Defender Service notes that defense lawyers handling criminal domestic violence matters may find themselves "embroiled" in related civil litigation.17
Similarly, the D.C. Bar Legal Ethics Committee previously recognized the close nexus between criminal domestic violence matters and parallel CPO proceedings. In D.C. Ethics Opinion 263, the Committee concluded that a CPO modification proceeding and an associated criminal contempt matter constituted the same "matter" for purposes of applying the Rule 4.2 prohibition on communications with represented parties:
While litigation may have many facets to it, those facets typically have at least some facts, evidence and legal principles in common. Activities or developments in one facet of a case rarely fail to have implications in others. That circumstance is well-illustrated in the Inquiry before us, where the core question in a CPO modification motion and in a criminal contempt motion is the same: what, if anything, did the respondent do in violation of the CPO.18
While Opinion 263 pertained to communications, its conclusions affirm the existence of a close factual and legal nexus between civil CPO hearings and associated criminal domestic violence matters. This nexus implicates standards of competent representation.
Rule 1.1(a) requires a lawyer to provide competent representation to a client and states that such "representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation." Comment [5] to Rule 1.1 explains that competence includes "adequate preparation and continuing attention to the needs of the representation to assure that there is no neglect of such needs." Rule 1.3(a) mandates that a "lawyer shall represent a client zealously and diligently within the bounds of law."
Elements of competent and zealous representation are fact-and matter-specific, involving contextual analysis of the governing legal regime and underlying details of specific cases. While there is no uniform standard to determine what constitutes competent or zealous representation in criminal domestic violence matters associated with parallel CPO hearings, the close legal and factual relationship between the two proceedings strongly suggests that CJA attorneys appointed in the criminal matter should remain mindful of and attentive to the parallel civil proceeding.
Thus, for example, the CJA attorney should seriously consider informing her client that developments in the civil proceeding may have case-dispositive implications for the client's criminal domestic violence matter. The CJA attorney should also seriously consider advising her client on how evidence and testimony presented in the CPO hearing will likely have consequences in the criminal matter. Moreover, the CJA attorney should herself strongly consider the importance of attending the CPO hearing—even if she does not enter an appearance—so she might stay apprised of developments and remain available to offer guidance to her client, if the facts and circumstances of the individual case so require.19 And, critically, as discussed above, the CJA attorney should explain to her client that her court-appointed representation extends only to the criminal matter, and not any associated CPO proceeding notwithstanding the common facts and circumstances underlying both.20
2. Propriety of Counseling a Client in the CPO Proceeding Without Entering an Appearance
If CJA counsel appointed to represent a defendant in a criminal proceeding determines that her participation in the parallel CPO proceeding is unnecessary, she should ensure the client is informed of this delineation. Moreover, the CJA counsel should remain vigilant that exclusion of the CPO matter does not bar the provision of competent client service.21 However, even without entering an appearance in the parallel CPO proceeding, the CJA attorney may nevertheless provide guidance to her client in the civil matter.
In D.C. Legal Ethics Opinion 330, the Committee concluded that the provision of unbundled legal services was ethically permissible under the D.C. Rules. (Generally, 'unbundling' refers to the separation of the legal tasks typically performed together into discrete components, only some of which the client contracts with the lawyer to provide.). The analytical underpinning of LEO 330 is that Rule 1.2 expressly provides that a lawyer and client may agree to the provision of legal services short of a full representation.22 The context in which the limitations of the lawyer's services arise in this particular inquiry are distinct, however, because the limitations on the scope of the lawyer's representation are largely defined by the court's appointment of the CJA attorney in the criminal matter. That is to say, the lawyer has been appointed by the court to represent the client in the criminal matter only, and any duties the lawyer has in connection with the civil case arise solely from her obligation to provide competent, diligent, and zealous representation in the criminal matter. In this sense, the CJA attorney is neither limiting the scope of her representation in the criminal matter nor engaging in the provision of limited scope services in connection with the CPO. Rather, she is keeping abreast of other significant legal matters involving her client that may impact the matter in which she represents her client.
The Committee also considered, and rejected, the possibility that an attorney's presence at a CPO hearing when such attorney has not entered a formal appearance, but seems to be providing assistance to a litigant, could be considered "misleading" to the court. In Opinion 330, the Committee concluded that nothing in the D.C. Rules requires lawyers to notify the court of their involvement in a matter outside of entering an appearance, even when they are "ghostwriting" briefs and clients appear pro se in the matters in which the briefs are filed:
After carefully examining the D.C. Rules and opinions from various jurisdictions, we conclude that nothing in the D.C. Rules of Professional Conduct requires attorneys who assist pro se litigants in preparing court papers to place their names on these documents or otherwise disclose their involvement. . . . Some opponents of the practice of "ghostwriting" court documents, as it is frequently called, argue that the chief sin of this practice is that it misleads the court into thinking a litigant is proceeding without legal assistance and thus granting special solicitude to the litigant. This, however, is an issue for the courts to identify if they perceive a problem with the practice.
We reach a similar conclusion here. Although the court may well prefer the attorney to enter an appearance in the CPO proceeding, it is not unethical (by virtue of its being misleading) for an attorney to choose not to do so. Should the court inquire of the lawyer, the lawyer must respond that he or she represents the litigant in a related criminal matter.
* * * *
This opinion neither mandates nor discourages a CJA attorney appointed in a criminal domestic violence matter from entering an appearance in a parallel CPO proceeding. However, if the CJA attorney chooses not to enter an appearance in the CPO proceeding, she should explain clearly to her client that the CJA authorizes representation only in the criminal matter, and not any related civil proceeding such as the CPO hearing. In addition, the CJA attorney should seriously consider advising her client on the implications that testimony and evidence adduced in the civil proceeding might have on the criminal domestic violence matter. Moreover, the CJA attorney may well deem it necessary to attend the CPO hearing and provide guidance to her client to ensure competent representation in the criminal domestic violence matter.
Published: June 2017
1. This Committee does not opine on questions of law outside of the Rules of Professional Conduct. The ethical questions presented in this inquiry, however, demand a contextual understanding of substantive domestic violence law and proceedings in which that law is applied. The accompanying discussion of criminal and civil domestic violence law reflects the Committee's understanding of relevant law for the sole purpose of analyzing the issues presented under the Rules of Professional Conduct.
2. H.R. Rep. No. 93-1172, 93rd Cong., 2d Sess. 7 (1974).
3. 11 D.C. Code, § 2601. The federal Criminal Justice Act, 18 U.SC. § 3006A (2016) (the "FCJA"), requires each federal District Court to establish a plan to furnish representation to indigent persons charged with federal crimes, noting that this plan may provide for representation of financially eligible persons involved in "ancillary matters appropriate to the proceedings [for which an FCJA attorney is required]." 18 U.SC. § 3006A(c). The United States Judicial Conference—the congressionally created policy-making arm of federal courts—has promulgated a comprehensive regulatory framework for administering the FCJA in its Guide to Judiciary Policy, Vol. 7, Part A (available online at http://www.uscourts.gov/rules-policies/judiciary-policies//criminal-justice-act-cja-guidelines) (last visited Sept. 15, 2016).
Section 210.20.30(c) of the Guide to Judiciary Policy provides that "[i]n determining whether representation in an ancillary matter is appropriate to the proceedings, the court should consider whether such representation is reasonably necessary … (2) to contribute in some significant way to the defense of the principal criminal charge; [or] (3) to aid in preparation for the trial or disposition of the principal criminal charge." No comparable District of Columbia guidance exists in connection with administration of its CJA.
4. See D.C. Court of Appeals, Obligations of Counsel (2008)
(http://www.dccourts.gov/internet/documents/cja_obligations.pdf).
5. Id. at ¶ 4.
6. Attorney Practice Standards for Criminal Defense Representation (2010) ["Practice Standards"]
7. Practice Standards, B-2.
8. See generally D.C. Intrafamily Offenses Act, D.C. Code §§ 16-1001—1059 (2014).
9. See Rule 12, D.C. Superior Court Family Division Rules on Intra-Family Proceedings; see also D.C. Code § 16-1005(f). A TPO is a temporary measure—lasting up to fourteen (14) days—issued by a judicial officer to provide immediate protective relief enjoining the respondent from having contact with the petitioner until a hearing on the CPO. See D.C. Code § 16-1004.
10. See District of Columbia Prevention of Domestic Violence Amendment Act of 1990, D.C. § 16-1031 et seq.
11. Public Defender Service, Criminal Practice Institute Manual at 40.1 (2015) ["CPI Manual"] (emphasis added). The CPI Manual is issued by the Public Defender Service for the District of Columbia as a comprehensive primer on the criminal law in the District of Columbia.
12. See CPI Manual at 40.12.
13. 556 A.2d 1082 (D.C. 1989).
14. Id. at 1084
15. Rule 1.2, Comment [4]
16. See also D.C. Legal Ethics Op. 330 (July 2005)
17. See CPI Manual at 40.1.
18. D.C. Legal Ethics Op. 263 (January 1996).
19. See Rule 1.1(a); Practice Standards, B-2 (recommending CJA attorneys counsel clients concerning matters related to their case).
20. See D.C. Rule 1.4(b). As detailed above, in certain circumstances, zealous and competent representation may very well require CJA counsel to attend the CPO hearing and offer advice to her client during that hearing. While the D.C. Bar Legal Ethics Committee cannot address the compensation of CJA counsel for tasks involving the CPO hearing, the close legal and factual nexus between this civil proceeding and the criminal domestic violence matter strongly suggests that the D.C. Superior Court might consider authorizing payment for work closely associated with providing zealous and competent representation in a Court-appointed matter. Cf. Guide to Judiciary Policy, § 210.20.30(c) (explaining that, in connection with the FCJA, federal district courts should consider a variety of factors in determining whether to authorize compensation in matters ancillary to that for which counsel was appointed: "[T]he court should consider whether such representation is reasonably necessary (1) to protect a constitutional right; (2) to contribute to some significant way to the defense of the principal criminal charge; [or] (3) to aid in preparation for the trial or disposition of the principal criminal charge . . . ").
21. See Rules 1.1, Rule 1.2, Comment [5], and D.C. Rule 1.5(b).
22. See Rule 1.2(c).
