In 1984, the U.S. Supreme Court set forth the standard under which claims of ineffective assistance of counsel in criminal cases are still judged in most jurisdictions in the case of Strickland v. Washington.1 As the right to counsel has expanded to encompass certain civil issues, the standard of effective assistance of counsel has likewise been expanded to those civil proceedings. This article will identify the standards set forth in Strickland, examine the application of the same in civil cases and recognize its civil progeny.

Strickland required consideration of proper standards for judging a criminal defendant’s contention that the Constitution requires a conviction or death sentence be set aside because counsel’s assistance at the trial or sentencing was ineffective.2 Strickland reviewed previous jurisprudence on the topic and analyzed the issue from a constitutional perspective, as well as scrutinizing the facts and theories of the case. The court held that:

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.3

The defendant has the burden of proof and if he is unable to meet either prong, his appeal will fail. Accordingly, the reviewing court is not required to analyze the case in any particular order, or even to address both components if the defendant is unable to meet his burden on one.4

 

Recognizing the wide range of reasonable professional strategy in a given situation, the court opined that the defendant has the burden to overcome the presumption that counsel’s tactics were sound. The court also emphasized that the appellate court must make every effort “to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct and to evaluate the conduct from counsel’s perspective at the time.”5 The court clarified that “representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another.”6

 

Like all states, Oklahoma retains a huge reservoir of power to act in defense of the vulnerable. This power exist under the doctrine of parens patriae7 — the sovereign’s parental role over its vulnerable citizens. Even within the contours of statutory pronouncement and procedures, this power is formidable, and in the case of many citizens, irresistible. Additionally, in some cases, such as adult guardianships, a great deal rests upon judicial discretion 8. These decisions come before an appellate court weighted with substantial deference9 and, therefore, likely to stand as originally decided. That structure exits by design.

We do not argue that the basic structure of the system is flawed. However, if the doctrine that “the King can do no wrong” ever had validity, it no longer holds currency10. The risk of error is profound. As noted in the guardianship context:

A guardianship proceeding poses the risk to the prospective ward of a massive curtailment of liberty, as well as of the infliction of adverse social consequences. The ward’s freedom to choose his place of residence, to travel, and to carry on relationships with others is limited or terminated. Numerous statutory disabilities are placed upon a ward including the loss of the right to remain licensed to practice a profession, to marry, to own or possess firearms, to operate a motor vehicle, to serve as a juror, and to remain registered to vote.11

Similar considerations attend the termination of parental rights. It has been held, for example that “parental rights are too precious to be terminated without the full panoply of protections afforded by the Oklahoma Constitution.”12 In reaching this conclusion, the court relied in part on the U.S. Supreme Court’s holding in Stanley v. Illinois:

The Court has frequently emphasized the importance of family. The rights to raise one’s children have been deemed “essential.”13

Parental rights have also been held “far more precious than property rights” and among “the basic civil rights of man.”14 This interest is defined as a “liberty interest” for 14th Amendment purposes.15

If any of the foregoing sounds familiar to criminal law practitioners who have never entered a domestic, juvenile or probate court, it should. Under both state and federal constitutional criminal procedure, the right to counsel rests upon similar principles. Thus, for example, in Argersinger v. Hamlin, extending the right to counsel to misdemeanors in which one’s liberty is threatened, the Supreme Court held:

[I]n those cases that end up in the actual deprivation of a person’s liberty, the accused will receive the “guiding hand of counsel” so necessary where one’s liberty is in jeopardy.16

Earlier, the U.S. Supreme Court held:

[The Sixth Amendment] embodies a recognition of the obvious truth that the average defendant does not have the professional legal skill to protect life or liberty, when the prosecution is [re]presented by experienced and learned counsel.17

Adopting the application of a Strickland standard in termination proceedings in Matter of D.D.F.,18 the Oklahoma Supreme Court ac-knowledged that provision of counsel carries with it the expectation of competent and effective representation. Particularly:

The right to counsel would be of no consequence if counsel were not required to represent the parent in a manner consistent with an objective standard of reasonableness.19

Although, the Oklahoma Supreme Court itself has not revisited the issue since DDF, the Oklahoma Court of Civil Appeals (COCA) has carried it forward and fleshed it out in the years since. In Matter of K.L.C.20, the court began by citation to D.D.F., and then briefly analogized child deprivation litigation to the criminal process. It then enunciated the Strickland standard as follows:

[A] criminal’s claim that representation was so deficient so as to require reversal must show (1) that the attorney’s performance was deficient and (2) that the deficient performance prejudiced the defense.21

While other appellate cases have adopted K.L.C.’s explication of Strickland, extant Oklahoma case law provides nothing in the way of alternate standards, little in the way of the mechanics of raising the claim and, of course, no definitive further holdings of the Oklahoma Supreme Court. We will explore those issues below.
 

RAISING THE ISSUE

In the Oklahoma cases to date, the issue of ineffective assistance has come before the appellate court on direct appeal. This will likely remain the most common method of adjudicating these claims. It is also the most efficient. We must remember that, unlike the criminal justice system, the state of Oklahoma must balance a civil litigant’s right of parenthood, or an adult’s right to personal autonomy, with the need to expeditiously protect the vulnerable.

In many cases, ineffective assistance of counsel requires a fact-based analysis not usually involved in appellate practice. The Oklahoma Supreme Court may address this issue under its rule-making power.22

Direct appeal provides the best vehicle in terms of meeting the twin goals of expediency and fairness. In many cases of guardianship and termination, the equivalent of an extensive (and seemingly interminable) post-conviction relief process is simply not feasible. On the other hand, appellate courts are not set up to be fact-finding bodies and, on occasion, ineffective assistance claims require fact-intensive analysis.23 Development of the issues during the appellate process does not pose an insurmountable hurdle to appellate review.

A number of states have addressed the need for fact-intensive review by remand in accord with their rules governing criminal procedure. The rules governing criminal appeals in Oklahoma provide as follows:

1) When a claim of ineffective assistance of counsel for failure to properly utilize evidence or investigate facts is raised, appellate counsel may submit an application for an evidentiary hearing supported by affidavits.

2) The application and affidavits must contain sufficient information to show the court by clear and convincing evidence that counsel was ineffective in failing to use or identify the complained of evidence.

3) If the court finds that a strong possibility of ineffective assistance exists, it remands to the trial court to conduct an adversary, evidentiary hearing of such scope as the appellate court may direct.

4) The trial court then makes findings of fact and conclusions of law as to the availability and effect of evidence and witnesses, or their non-use, and whether it would impact the ultimate result. While appellate court reviews the findings deferentially, it makes the ultimate decision.

5) Either party may file a 10-page supplemental brief addressing the issue in the supplemented record.24

In most cases, the procedure outlined above will allow a complete review when viewed in conjunction with the main record. There is no practical or jurisprudential reason that this rule could not be engrafted onto the rules of the Supreme Court as well. The disruption and delay would be minimal, particularly when viewed in light of the interests at stake.25

A word needs to be said about situations in which trial counsel and appellate counsel are the same. At least one court presumes that in such a situation, appellate counsel would be incapable of presenting the issue of ineffective trial counsel on direct appeal.26 This also recognizes the possibility that, in certain situations, the client may not recognize the deficiency. After all, part of the reason for the right to counsel is the recognition of “the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty.”27 In such circumstances, particularly in the case of a disabled person resisting a guardianship, the expectation that they can discern between “ineffective assistance” and “unsuccessful strategy” seems unrealistic.

Civil procedural statutes regarding vacation of judgments provide one avenue of relief.28 Under this regime, the grounds of “unavoidable casualty,” “excusable neglect” or “procedural irregularity” may suffice to get the issue before the court.29 In Texas, for example, the issue may be raised in a post-trial motion.30 The same is true in Wisconsin which allows a post-trial motion for the purpose of taking testimony to determine the underlying reasons for the trial counsel’s acts or omissions. Florida, in contrast, allows for relief via habeas corpus.31

In devising a vehicle for bringing a claim of ineffective assistance before the appellate courts, we cannot discount the time factor. The civil justice system operates on the assumption that litigation must, at some point, come to an end.32 In termination cases, the need becomes more acute given the need for new familial relations to gel on the one hand, and the effect of absence on the parents’ relations with the child on the other. In the case of adult guardianships, the adjudication may come as a prelude to institutionalization or isolation from access to a “second look” attorney. It has not escaped notice that adults placed under guardianship often “vanish.” Therefore, any collateral procedure must carry with it a reasonable time frame. Though governed by statute33 and constitutional provisions,3 habeas corpus nonetheless remains a creature of equity.35 Therefore, laches may apply, and the court may establish guidelines for assessing reasonableness of the delay and prejudice.36 Under the new trial/vacation regime in the Code of Civil Procedure, the time frames are set out by statute.37
 

APPLYING THE STANDARD

Now that we’ve determined that Strickland applies and the mechanics of raising it, how do we apply it? Not surprisingly, courts differ on the parameters of the standard and the means of the evaluation. Keep in mind that recognizing ineffective assistance as a concern in termination and guardianship proceedings does not mean a deluge of satellite litigation and reversals. Situations in which violations of Strickland’s standards will mandate reversal prove the exception rather than the rule.

At the outset, the court must apply a strong presumption of competence. That is, the court will presume trial counsel’s actions rose from sound tactical choices. As Strickland itself de-mands: “the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.”38 To prove ineffective assistance of counsel, a parent must show both defective performance and prejudice to the defendant as judged against a standard of objective reasonableness.39

The extreme cases stand out and require little analysis. Those would fall into the “potted plant” category where the poor performance falls to the level of no assistance at all. Thus, the U.S. Supreme Court has dispensed with a full-blown Strickland inquiry “When the defendant can establish that counsel was not merely incompetent but inert.”40 This would include the case of sleeping counsel,41 and those in which counsel wholly failed to investigate, discuss the law with their client, or failed to advise of the consequences of a particular plan or action.42 Obviously, there is no reasonable justification for an attorney to sit passively, and allow a client’s fundamental parental rights or liberty and self-determination to be lost upon scant or inadmissible evidence. The key to effective assistance is that, whether successfully or not, the attorney “requires the prosecution’s case to survive the crucible of meaningful adversarial testing.”43 More often, however, the court must make a qualitative analysis to determine whether counsel’s performance crossed the line from just unsuccessful to a constructive denial of counsel. In such cases, the performance of counsel must be evaluated in terms of the proceedings as a whole.44

Representative of this standard, in Matter of S.S.,45 mother’s assigned attorney appeared at a criminal trial in another county. She sent another attorney from her firm to request a continuance. When the court denied the continuance, mother had to proceed pro se. Later that afternoon, a second attorney from the attorney’s firm appeared. She, in turn, had minimal preparation time and little time for the mother to debrief her of what transpired that morning. At the close of the case, the court terminated mother’s parental rights.

On appeal, mother’s attorney, the same attorney missing in action at trial, did not raise the claim of ineffective assistance of counsel. Rather, COCA raised it, sua sponte, declaring “if a fundamental constitutional right is violated, it is the duty of this court to raise the issue sua sponte.”46 In essence, COCA found the ineffective assistance claim included under her due process claim.47 COCA began its analysis quoting from D.D.F., stating:

The deprivation of [parental] rights is a serious matter, and failure to provide counsel may result in a deprivation of due process . . . [S]uch proceedings shall not be held without the parent’s having an opportunity to be represented by counsel.48

From here, COCA noted that, indisputably, mother lacked counsel for the first half of the state’s case in chief, and that the substitute counsel had only minutes to consult and prepare. Thus, from the record before it, lack of meaningful representation became a virtual res ipsa loquitur.49 The state argued that the request for continuance lacked merit, was not properly raised, and, in any event, the court had discretion to grant or deny the continuance. COCA disposed of the theory stating:

Absence of counsel is not made one of the statutory grounds for a continuance. If, however, the trial court’s action in overruling an application on this ground resulted in depriving the defendant of the benefit of counsel, or even if it appeared from the record that the defendant had a substantial defense to the charge which he was unable to present by reason of the absence of counsel, this court would unhesitatingly set aside a conviction for failure to grant a reasonable continuance.50

In rejecting the state’s argument, COCA recognized both the state’s interest in obtaining permanency for a minor child and the court’s interest in controlling its docket. As to the latter, it ruled “that the court has other methods at its disposal for controlling attorneys who do not follow the court’s rules and procedures and who fail to appear for trial leaving clients to fend for themselves.”51 In final analysis, COCA held: “we find that rights are too precious to be terminated without full panoply of protections afforded by the Oklahoma Constitution. We know that the best interest and welfare of the child is the primary consideration but we also know that this goal is best achieved by full compliance with the law.”52

Matter of S.S. presented the appellate court with problems within the actual structure of the trial proceeding. As such, the court did not need to do a qualitative analysis of the trial lawyer’s performance. We look to two such cases now.

In Matter of K.S., 53 mother appealed the termination of her rights on the basis of ineffective assistance. Mother complained of what she deemed a lack of adequate preparation. Specifically, she stated that her attorney did not try to contact her until one week prior to trial and spoke to her for less than 40 minutes. The trial court found appellant herself responsible for the lack of communication. COCA first ob-served “there is no hard and fast rule setting forth how much time an attorney needs to adequately prepare for a given case.”54 That said, the court stated that “while the instant case was one of utmost importance, neither the facts nor the law were complex or difficult.”55

The court next examined the counsel’s legal performance. As to the lawyer’s failure to sever mother’s case from that of her common law husband, the court found that each party had representation and had an opportunity to “present his or her own story.”56 So saying, COCA declined to speculate whether severance would have made a difference. Similarly, it rejected the assertion that mother’s attorney did not file a witness list or interview the witnesses she wished to call. However, the court observed that the lawyer had an opportunity to interview the witnesses, and all but one of his unlisted witnesses testified. In a somewhat unsatisfying conclusion, the court stated that “Where an attorney takes no action on behalf of a client, there is a legal presumption of prejudice …. However, the lawyer in question [in this case] did more than nothing.”57

In contrast to the findings in Matter of S.S., the Supreme Court of Alaska addressed the ineffective assistance of counsel issue in David S. v. State.58 There, David S. appealed the termination of parental rights to his daughter Hannah. The state had acquired custody during David’s incarceration. While on parole, he visited her regularly for a period of about five months. He then turned fugitive and eluded capture for a period of nine months at the end of which he returned to prison. During his time on the run, the state initiated termination proceedings. Subsequently, following a trial at which David had benefit of counsel, the court found it in Hannah’s best interest that David’s rights be terminated.

David raised the issue of ineffective trial counsel in a post-trial motion. Specifically, he asserted “that his attorney was overly “passive” during trial and did not adequately pursue David’s goal of placing Hannah with his mother.” The trial court found that “although trial counsel could and should have done more,” the “factual findings upon which termination was premised in 2009 are largely undisputed.”59

The Alaska Supreme Court began its analysis with a brief review of its having adopted the standards for ineffective assistance from its criminal jurisprudence into its juvenile law. Those standards comport with Strickland. The court noted in particular that:

An integral component of the presumption of competence is the further presumption that trial counsel’s actions were motivated by sound tactical considerations. The duty of rebutting this presumption is part and parcel of the accused’s burden of proof: “[T]he defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.60

David first complained that his attorney suggested relinquishment of his parental rights at their first meeting and that he should have met with him more, thus, apparently, displaying an insufficient zeal or enthusiasm for the case. However, the attorney explained that, under Alaska law, with relinquishment he would retain some visitation rights while with termination he would have none. Given David’s history and the evidence against him, this appeared a sound strategic consideration. In addition, counsel noted that he had tried to contact David several times during his fugitive period and that David knew how to contact him. The Supreme Court did not further consider this ground.

David’s next complaint stemmed from his not having received an opportunity for a “dry run” prior to trial. Testimony at the post-trial stage indicated that rehearsal was standard practice. Looking at the record made during the post-trial hearing — at which expert legal testimony was introduced on David’s behalf — the Supreme Court concluded:

In this case, trial counsel demonstrated a willingness to work with David and respond to his concerns. He offered strategic reasons for his trial decisions, and David did not prove otherwise. Although the superior court found that counsel’s performance was substandard insofar as he did not conduct a run-through of David’s testimony prior to his taking the stand, it is unclear that this mistake “fell outside of the range of reasonable actions which might have been taken by an attorney skilled in the . . . law.”61

The court next looked at trial counsel’s closing argument, the brevity of which David’s expert called “shocking.” In its entirety, counsel stated as follows:

I have just a few brief comments. We believe that [David], if given the opportunity, would be a suitable parent for his child. And he’s been struggling, rightly, with his addictions and he’d usually do — he often does fairly well, and we think with more effort, that he could be a suitable parent.62

As to this, the court observed that the state’s closing was brief, touching only upon the elements required to establish termination. In the final analysis:

David did not show how an improved or more aggressive performance would have made a difference in the outcome of his case. At the conclusion of closing arguments, the superior court noted: “This is in my view not a close case.” Nonetheless, David argues that his “trial counsel could have raised the issue that David had an adequate plan in place for Hannah’s care during his incarceration.” But incarceration was only one of the three grounds on which the superior court found Hannah to be a child in need of aid. And David did not dispute the factual bases for the superior court’s rulings on the other two grounds: abandonment based on his nine-month flight from the authorities and substance abuse based on his methamphetamine and marijuana use. …David does not specify how he thinks the trial would have been different if his counsel had taken a different approach.63

Finally, the court took up the issue of whether counsel performed too passively in the matter of Hannah’s placement with David’s mother. In sum:

David argues that an attorney in a CINA case acts as “both an advocate for and a counselor to a client” and that his attorney failed in this latter role. David contends that his attorney should not have advised him to stipulate that Hannah was a child in need of aid in April 2008 when she was taken into custody by the State. David also argues that his counsel “failed to advocate for the placement of Hannah with her paternal grandmother, Claire.” David relies on his expert witness’ statement that “[the] attorney’s failure to advocate for placement adequately with Claire fell below the standards of representation.”64

The Supreme Court viewed it differently. “The opportunity to place Hannah with Claire seems to have been robustly explored, and it is unclear what additional advocacy for this option would have accomplished.”65 The opinion notes that, apparently, the Offices of Children’s Services itself made efforts to place the child with Claire and, the court did not see the relevance of placement with Claire to the issue of termination. In passing, the court also suggested that an attorney has no obligation to pursue a futile or frivolous strategy simply because a client desires it.66

Obviously, the lawyer in David S. had both a difficult case and a difficult client. Yet, difficulty alone does not excuse poor lawyering. Interest of J.M.B.,67 for example, proceeded to trial in the absence of the child’s mother. The decision does not explain that absence, other than to note that she later contested notice of the hearing, which the court found not plausible. As to her trial attorney’s performance, however, the appellate court determined:

While mother’s absence made counsel’s duty more difficult to fulfill and is not condoned by this Court, it did not abrogate mother’s right to effective assistance. Rather, mother’s absence made the need for effective assistance of counsel even more important, especially in light of the awesome power wielded by a court in severing the parent-child relationship.68

The appellate court characterized the state’s argument that the attorney in this case did more on behalf of his client than the attorney in a precedential case “misplaced,” inferentially ruling that the effectiveness of counsel is determined from the totality of the record in the case before the court rather than on some sort of comparative standard. In effect, the court seemed concerned with this case serving as a mandate for a lowest common denominator standard. The court also cited to a New York case, In re Guardianship of Orneika J,69 in which the court found ineffective assistance of counsel despite mother’s absence and the attorney’s inability to communicate with her, where the attorney simply stood mute after his request for continuance was denied. The obvious takeaway is that attorneys cannot use the negative qualities of their clients to justify their own lack of performance.

We must point out at this point that not all ineffective assistance claims stem from an attorney’s apathy, incompetence, or indolence. In some cases, it can arise from a positive impulse of an attorney to “do what’s best” for the client despite the client’s wishes. Thus, we have attorneys conflicted between adopting a “best interest” or “zealous advocacy” stance. In Matter of M.R.,70 the court had before it the case of a 22-year-old adult, presenting moderate mental retardation and Down Syndrome. While no one challenged the need for guardianship, the divorced parents each sought custody. MR herself wished to move out of her mother’s home and into her father’s. Mother introduced two experts who opined that MR lacked capacity to make the choice. While this case raises interesting questions regarding degrees of capacity and autonomy, it is the analysis of the performance of MR’s attorney which makes it relevant to this discussion. Father appealed placement with the mother, in part because he alleged that MR’s attorney did not zealously defend her right to choose. The court began by enunciating the proper role of the court:

As guardians of personal rights, courts have a special responsibility to protect the right of self-determination. Concerning developmentally-disabled citizens, we have declared that the public policy of this State is “to maximize the developmental potential of [developmentally-disabled persons] while affording them the maximum feasible personal liberty.”71

The court then explored the difference between a court-appointed attorney (a zealous advocate for his client’s goals) and a guardian ad litem (a neutral set of eyes for the court to assist in determining best interest). It then declared:

Advocacy that is diluted by excessive concern for the client’s best interests would raise troubling questions for attorneys in an adversarial system. An attorney proceeds without well-defined standards if he or she forsakes a client’s instructions for the attorney’s perception of the client’s best interests. Further, “if counsel has already concluded that his client needs ‘help,’” he is more likely to provide only procedural formality, rather than vigorous representation. ([The court here noting that] “[i]f the attorney is directed to consider the client’s ability to make a considered judgment on his or her own behalf, the attorney essentially abdicates his or her advocate’s role and leaves the client unprotected from the petitioner’s allegations”). Finally, the attorney who undertakes to act according to a best-interest standard may be forced to make decisions concerning the client’s mental capacity that the attorney is unqualified to make.72

This decision comports with Oklahoma’s current ethical rules concerning clients under a disability:

a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the ap-pointment of a guardian ad litem, conservator or guardian.73

The Committee for Public Counsel Services, a Massachusetts agency, has offered a set of guidelines on this issue which include the following:

The role of counsel is to diligently and zealously advocate on behalf of his or her client, within the scope of the assignment, to ensure that the client is afforded all of his or her due process and other rights. To that end, only in exceptional circumstances may counsel stipulate to the client’s incapacity; provided, however, that in proceedings in which a substituted judgment determination is required, counsel must oppose the petition and present ‘all reasonable alternatives’ to the proffered treatment for the court’s consideration.74

To achieve this, counsel must, at minimum:

During the hearing the attorney shall act as a zealous advocate for the client, insuring that proper procedures are followed and that the client’s interests are well represented. To that end, the attorney shall: (a) file any and all appropriate motions and legal memoranda, including but not limited to motions regarding the assertion of privileges and confidential relationships, and the admission, exclusion or limitation of evidence; (b) present and cross-examine witnesses, and provide evidence in support of the client’s position; (c) make any and all appropriate evidentiary objections and offers of proof, so as to preserve the record on appeal; and (d) take any and all other necessary and appropriate actions to advocate for the client’s interests.”75
 

CONCLUSION

It’s hard to overstate the importance of the parent-child bond, and it is difficult to appreciate the importance of autonomy to the elderly and vulnerable. Some people say that one’s children and/or autonomy represent their most precious assets. We say that description is inadequate in both regards, reducing these intangibles to things. Therefore, we agree with those courts characterizing both as fundamental liberty interests. That said, we also acknowledge that not all can handle these freedoms. Parens patriae — both in its statutory and common law forms — thus remains a necessary concomitant of state power. But it must also remain a tool wielded with surgical precision — a goal best ensured by attorneys prepared to “require the prosecution’s case survive the crucible of meaningful adversarial testing” before cutting begins.

Currently, a perfect storm is brewing. While adopting Strickland, the Oklahoma Supreme Court has had little opportunity to advance or expend its application in published opinions to date. COCA has visited the issue several times, but many cases suffer from a paucity of facts displaying the analytical process. Obviously, the last word remains unwritten. Given the national sweep of the civil Gideon movement, the issue will likely arise with more frequency in the foreseeable future. Specifically, proponents of that movement urge courts and legislators to take a hard look at life-altering civil cases to assess the need for appointed counsel and to ensure that counsel be competent.76

Oklahoma declares itself a jurisdiction in which “both the appearance and reality of fairness” is preserved.77 We constitutionally declare our courts fair and open,78 and our jurisprudence guarantees that mandate as more than “an empty formality.”79 It is therefore imperative that we, as civil practitioners, understand both the depths and mechanics of our professional obligations in these most critical of civil matters.

Authors’ Note: Special thanks to Sonya Patterson for her editorial assistance.

1. 466 U.S.668(1984)
2. Id. It is interesting to note that the ineffective assistance of counsel of which the defendant complained was in the sentencing phase, after the defendant had entered a plea of guilty to three murders, each of which was committed during perpetration of a felony. The guilty pleas were entered against advice of his counsel and the defendant was sentenced to death on all three murders.
3. Id. at 687.
4. Id. at 697.
5. Id. at 689, emphasis added
6. Id. at 693.
7. McIntosh v. Dill, 1922 OK 35, 205 P. 917, 925 as quoted in Matter of Baby Girl L. 2002 OK 9, ¶22, 51 P.3d 544.
8. Songer v. Austin, 2011 OK CIV APP 82, ¶3, 262 P.3d 384.
9. Matter of Guardianship of Holly, 2007 OK 53, ¶19, 164 P.3d 137.
10. By way of example, from 1989 through 2010, there have been 289 DNA exhonerations in the United States. Approximately twenty (20%) percent of these raised ineffective assistance of counsel claims. Eighty (80%) percent of those were initially rejected by appellate courts. Source: The Innocence project, www.innocenceproject.org/docs/Innocence_Project_IAC_Report.pdf (Last accessed 5/4/2012).
11. Town v. Hubbard, 2000 OK 30, ¶12, 3 P.3d 154.
12. A.E. v. State, 1987 OK 76, ¶22, 743 P.2d 1041.
13. 405 U.S. 645, 651 as quoted in A.E v. State, supra at ¶30.
14. Matter of State in the Interest of A.W., 2011 OK CIV APP 27, ¶22, 250 P.3d 343.
15. Id.
16. Argersinger v. Hamilin, 405 U.S. 25 (1972).
17. Johnson v. Zerbst, 304 U.S. 458, 462-63 (1938).
18.1990 OK 89, 801 P.2d 703, 707.
19. Id.
20. 2000 OK CIV APP 98, 12 P.3d 478.
21. 2000 OK CIV APP 98 at ¶9.
22. See, e.g.: In re Geist 796 P.2d 1193, 1208 (OR 1990)(responsibility of court to fashion mechanisms of review so that right to counsel not illusory); Unah By and Through Unah v. Martin, 1984 OK 2,12,676 P. 2d 1366 (“The court bears the responsibility to change a court-made rule of law where it deems the change necessary in the interest of justice.”)
23. In re JMS, 43 S.W.3d 60, 64 (TX2001) (noting that limited review in the record may not fully reflect counsel’s performance).
24. Condensed from 22 O.S. App, Rules of the Court of Criminal Appeals, Rule 3.11(B)(3)(b).
25. Town, supra, note 11.
26. In re Whiteman, 1993 WL241729*15 (Ohio APP 6th District).
27. Johnson v. Zerbst, supra 304 U.S. at 462.
28. See generally 12 O.S. 1031 et seq. (2011).
29. 12 O.S. 1031.
30. JMS, supra., note 23.
31. L.W. v. Department of Children and Families, 812 SO 2d 551, 557 (FLA. APP. 2002); accord: In re Kristin H., 54 CAL. Reporter 722.
32. Chandler v. Denton, 1987 OK 109, ¶15, 747 P.2d 938; See also: Tibbets v. Sight and Sound Appliance Centers, 2003 OK 72, ¶15, note 28, 77 P.3d 1042 (Opala, J. dissenting).
33. 12 O.S. 1331 et seq. (2011).
34. OKLA. CONST. ANN. Article V11, § 4.
35. Ex parte Yahola, 1937 OK 36, ¶14, 71 P.2d 968.
36. Ex parte Matthews, 1947 OK CR 130, 186 P.2d 840 (Syl.7).
37. 12 O.S. 1036 (2011).
38. Strickland, supra 466 US at 689.
39. Matter of S.S., 2004 OK CIV APP 33, 11-12, 90 P.3d 571.
40. United States v. Cronic, 466 U.S. 653 (1984).
41. Burdine v. Johnson, 262 F. 3d 336, 338 (5th Cir. 2001).
42. Childress v. Johnson, 103 F. 3d 1221, 1226 (5th Cir. 1997).
43. Cronic, op. cit. at 656.
44. Matter of R.S., 2002 OK CIV APP 90, ¶18, 56 P.3d 381.
45. 2004 OK CIV APP 33, 90 P.3d 571.
46. 2004 OK CIV APP 33 at 7 (emphasis added).
47. Id.
48. Id. at ¶8 (emphasis and ellipsis by COCA).
49. At this point COCA cited to Powell v. Alabama, 287 U.S. 45, 53 S. Ct 55(1932) (emphasize court appointed counsel must be appointed in sufficient time for counsel to be effective.
50. 2004 OK CIV APP 33 at paragraph 17 (emphasis by COCA), quoting Anderson v. State, 1922 OK CR 21, 207 pp. 977, 983.
51. Id.
52. Id. at 20 (emphasis and footnotes omitted by COCA).
53. 2000 OK CIV APP 98, 12 P.3D 478.
54. 2000 OK CIV APP 98 at ¶11.
55. Id.
56. Id. at ¶12.
57. Id.
58. __ P.3d __, Alaska Sup. Ct. Case #6647 (2012) (Slip Opinion accessed at http://courts.alaska.go/ops/sp-6647.pdf (Last accessed 5/4/2012).
59. Id. at 33.
60. Id. at 34.
61. Id. at 38.
62. Id. at 36.
63. Id. at 38-39.
64. Id. at 39.
65. Id. at 40.
66. Compare: Birchfield v. Harrod, 1982 OK CIV APP 2, ¶12, 640 P.2d 1003: “The thing that stands out the most in this pro se pleading is Birchfield’s admission that she attempted to act as her own lawyer and demanded that Harrod carry out her orders. . . . Aside from the fact that a series of legal conclusions bereft of facts are pleaded, a brand new concept in professional malpractice has been unveiled hin the pleading — subjection of a lawyer to liability for failure to follow the legal advice of his client.”
67. 939 SW 2d 53 (MO. App 1997).
68. 939 SW 2d at 56.
69. 491 NYS 2d 639, 640-41 (1985) referenced at 939 SW 2d at 57, note 4.
70. 638 A.2d 1274, 135 NJ 155 (NJ 1994).
71. 135 NJ at 166 (citations omitted).
72. Id. at 176-77. Accord: Gross v. Rell, 304 Conn. 234, 269 (2012)(“governing standard for the representation of impaired adult clients is not the protection of their best interests, but, to the extent possible, the zealous advocacy of their expressed preferences. This is true even if the Probate Court has appointed a conservator for the client”); Estate of Leonard v. Swift, 656 N.W.2d 132, 142 (Iowa 2003) (“ In summary, the guardian ad litem advocates for the best interests of the ward, whereas an attorney advances the wishes of the ward”); In re Lee, 132 Md. App. 696, 718, 721 (2000) (“The duties of an attorney may at times directly conflict with the duties of a guardian ad litem).
73. Oklahoma Rules of Professional Conduct, 5 O.S. APP 3-!, Rule 1.14.
74. Committee for Public Counsel Services Guidelines, Guideline 1 (2012)
75. Id. Guideline 12.
76. Boston Bar Association. Gideon’s New Trumpet, pp. 12-17 (2008).
77. Pierce v. Pierce, 2001 OK 97, ¶18, 39 O,3d 791.
78. OKLA.CONST.ANN Art.II, Sec.3.
79. Woody v. State ex rel. Department of Corrections, 1992 OK 45, ¶9, 833 P.2d 257.

ABOUT THE AUTHORS

Rick Goralewicz graduated from King’s College and the OCU School of Law. After 21 years in private practice, he joined the Senior Law Project of Legal Aid Services of Oklahoma in 2003.

Paula Davidson Wood graduated from Oklahoma State University and the OCU School of Law. Currently employed by Legal Aid Services of Oklahoma, she works primarily with victims of domestic violence in the area of family law.

Originally published in the Oklahoma Bar Journal - Aug. 9, 2014 - Vol. 85, No.20