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  • InsideTrack
  • April 20, 2016

    Ethical Dilemmas: Ethical Responsibilities of Stand-by Counsel

    April 20, 2016 – You have been appointed to act as stand-by counsel to a criminal defendant who is representing himself at a trial. There are no Rules of Professional Conduct that talk about this type of situation. So just what are your ethical duties?

    Question

    Lawyer has been appointed by Court to act as stand-by counsel to Criminal Defendant who has elected to represent himself at trial.

    What are the ethical duties of stand-by counsel?

    Answer

    The Rules of Professional Conduct provide no explicit guidance on this issue. There is no rule directly addressing the duties of stand-by counsel and, in fact, the concept of stand-by counsel is not mentioned anywhere in the rules.

    Perhaps the leading source of guidance is ABA Formal Opinion 07-448. The summary of that opinion provides:

    The client-lawyer relationship is a consensual one. Situations arise, however, in which a lawyer is appointed to represent someone who declines the representation. Whatever purposes may be served by requiring lawyers to provide services relating to such a person, the person refusing representation is not entitled to expect of the lawyer the duties arising out of the client-lawyer relationship. The lawyer's legal duties – if any – are defined in such circumstances by the order of the assigning tribunal, and the lawyer's ethical duties are limited to those obligations a lawyer owes under the Rules to tribunals or to persons other than a client.

    The ABA Opinion further explains:

    Courts may appoint “standby counsel” for a criminal defendant who elects to represent himself to avoid disruption if the defendant later demands a lawyer. There is no client-lawyer relationship unless and until the defendant accepts representation. Such defendants sometimes turn to “standby counsel” and seek advice or assistance without intending to waive their self-representation right. The substantive Sixth Amendment principles defining when a defendant has waived that right differ from those addressed in this opinion. Whenever such a defendant turns to appointed counsel and seeks advice or representation, the defendant may be found to have consented to and thereby to have created a client-lawyer relationship under the Rules.

    (Footnotes omitted)

    Thus, this opinion takes the position that a lawyer who has been appointed to act as stand-by counsel for a self-represented person does not have a client unless and until that person seeks the assistance of stand-by counsel, thereby forming a lawyer-client relationship. The lawyer therefore looks to the order appointing here as stand-by counsel and the Rules governing duties to unrepresented persons (e.g., SCR 20:4.3) for their ethical duties.

    In contrast, The New Hampshire Bar, in recently issued Ethics Committee Advisory Opinion #2015-16/9, takes the position that appointment as stand-by counsel does create a limited lawyer-client relationship. That position seems tenuous because the Supreme Court has recognized a constitutional right self-representation1, and a defendant who has a lawyer, even in a limited role, is represented.

    Perhaps the most sensible approach is that taken in New York State Ethics Opinion 949, which sets forth three possible roles for stand-by counsel on a spectrum. At one end of the spectrum is a “passive” role, when the pro se individual does not in any way seek the assistance of stand-by counsel and no lawyer-client relationship is formed, but rather the lawyer owes duties to the pro se individual under SCR 20:1.18 (Duties to Prospective Clients). The middle of the spectrum is where the pro se individual seeks limited assistance from stand-by counsel, who is then providing limited scope representation under SCR 20:1.2(c). The other end of the spectrum is full representation, when the individual essentially accepts stand-by counsel as their lawyer in the matter.

    The lack of precise agreement among these opinions make the point that there is no one model for stand-by counsel and the role is defined by the appointing court and the requests of the defendant. It is therefore critical that stand-by counsel seek guidance as necessary on their role from the court. To that end, the New Hampshire opinion provides the following advice:

    In this vein, stand-by counsel may be wise to file a motion for instruction upon appointment as stand-by counsel. That motion may seek instruction from the trial court about whether, based on the circumstances of the case, counsel must:

    • Assist in any investigation of the case.

    • Identify or prioritize those issues on which the defendant should focus attention.

    • Develop a full understanding of the prosecution's records, documents, reports and other investigations pertaining to the case.

    • Attend all pre-trial hearings and conferences in the case.

    • Assist in specific areas or aspects of the case (e.g., discovery), given the facts of the case.

    • Undertake research and render advice about specific areas of the law applicable to the case.

    • Interview, research or develop knowledge about witnesses, and/or assist the defendant in locating witnesses helpful to the defense, including expert witnesses.

    • Generally communicate with the pro se defendant to offer assistance versus responding to requests for assistance, only.

    • Bring to the attention of the defendant matters beneficial to the defendant.

    • Consistent with NHRPC 3.3(a)(3), reveal that evidence offered by the defendant is false, if stand-by counsel knows such evidence is false, or to affirmatively counsel the defendant if the defendant intends to commit a fraudulent or criminal act. See NHRPC 1.2(d).

    • Seek more defined guidance at specific points in a case, such as competency hearings, pre-trial discovery, trial and sentencing.

    Once the lawyer has received guidance as to their role from the court, the lawyer can then apply the proper Rules to the representation.

    In Case You Missed It: Read Past Ethical Dilemmas

    Ethical Dilemmas appears monthly in InsideTrack. Check out these topics from past issues:

    Endnotes

    1 Faretta v. California, 422 U.S. 806 (1975).


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