State v.
| Decision Date | 12 July 2016 |
| Docket Number | File No. 1511000666 |
| Parties | State of Delaware, v. J.R.M. Respondent. |
| Court | Delaware Family Court |
State of Delaware,
v.
J.R.M. Respondent.
File No. 1511000666
FAMILY COURT OF THE STATE OF DELAWARE IN AND FOR SUSSEX COUNTY
July 12, 2016
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.
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.
Page 2
On March 24, 2016, Judge Millman issued a Letter Order reviewing the events of the March 21 hearing.1 That same day, Judge Millman recused himself from the Respondent's case.
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.
Page 3
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.
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.
Page 4
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,2 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.
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.
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.
Page 5
To continue reading
Request your trial