Ineffective Assistance of Counsel in Chancery
August 7, 2018 § 2 Comments
Can a lawyer be held to have provided “ineffective assistance of counsel” in a chancery court proceeding?
That’s what Elle Adams argued in her pro se appeal from a chancellor’s determination to hold her in contempt for denying her child’s father visitation.
In Adams v. Rice, decided June 12, 2018, the COA through Judge Barnes answered in the negative:
¶34. Finally, Elle argues that her counsel was ineffective. In January 2016, the attorney at issue [Fn omitted] entered an appearance. She later represented Elle at the hearing on March 31, 2016, where Elle failed to appear. Elle complains that her counsel “belittled” and “mocked” her at the beginning of the hearing by explaining to the chancellor that Elle had contacted her several times about being unable to travel to the hearing due to a sick child. Elle also criticized her counsel for advising her that she would “lose the case” if she was absent from the hearing.
¶35. Elle’s argument is procedurally and substantively without merit. The Sixth Amendment right to effective assistance of counsel is triggered in criminal proceedings, not family-law matters. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (discussing the standard of ineffective-assistance-of-counsel claims in the context of criminal proceedings). Notwithstanding the impropriety of the claim, this Court has reviewed the transcript and found, as the chancellor noted at the hearing, that Elle’s attorney “did a good job” representing Elle’s interests in her absence. Counsel apparently tried to impress upon Elle the importance of her appearance and the impact her absence could have on the outcome of the case. Elle’s accusations about her counsel are unfounded, and her argument is without merit.
The opinion points out that Elle hired and fired several lawyers and represented herself through the course of the case.
I point this case out only to underscore what you already know if you have practiced any family law at all: there are some clients who will criticize you and even file bar complaints against you no matter how hard you work for them, and even when you produce a good outcome. It comes with the territory of being a lawyer. Judges get it, too. The chancellor in this case was accused of bias and prejudice, and even sued in federal court, over her handling of the case. Once Elle learned a little about how to wield the law as a weapon, she scattershot every target in sight.
As for ineffective assistance, sadly there are lawyers who should never set foot in a courtroom as an advocate. But the overwhelming majority of lawyers are effective, conscientious, zealous, and competent in pursuing their clients’ interests. None of those attributes, however, alone or in combination, will shield you from the wrath of an irrational client.
The Better Chancery Practice Blog 
But if a Judge sees “ineffective” representation shouldn’t it take action to protect the party, himself and final decision???
That’s a fine line. In order to protect a child the court may take a more active role. MRE 614 allows the court to examine and even call witnesses. In one case before me involving custody, I called the GAL as my own witness after both sides rested without calling her. I think the appropriate role of the court is to develop only enough proof to support a finding one way or the other.