Monday, December 5, 2016

Standing By: The Ethics Of Standby Counsel

The New Hampshire Bar Association has issued a thoughtful analysis of the role of "standby counsel" in a criminal case.

"Standby counsel" is not an advocate or "counsel" in any normal sense. If stand-by counsel acts as an advocate or in any way undermines the pro se defendant's control of that defendant's own case, the defendant's right to self-representation may be violated.

Except when the defendant consents, standby counsel is not in control of the case. Standby counsel must instead serve as a passive source of information, answering questions of law from the defendant when he/she chooses to ask such questions.

Serving as stand-by counsel is not per se unethical. However, stand-by counsel would be wise to seek instruction and guidance from the trial court on a case-by-case basis, to define those responsibilities which stand-by counsel must undertake, and to outline for the defendant the consequences of self-representation.

The analysis

A threshold question is whether service as a stand-by counsel creates an attorney-client relationship between that counsel and the pro se defendant. If, for example, the relationship of stand-by counsel and the pro se defendant is not an attorney-client relationship, then the analysis of the lawyer's ethical duties to that defendant ends there. The Committee believes that although the ethical responsibilities of stand-by counsel substantially depart from those in a typical attorney-client relationship, as noted below, such a relationship arises in spite of these limitations. Recognition of this determination is important because certain fundamental duties and rights such as the preservation of client confidentiality (NHRPC 1.6) and attorney-client privilege, and the duty to avoid conflicts of interest (NHRPC 1.7) remain as part of an attorney's responsibilities to an otherwise self-represented defendant.

From there, the ethical analysis grows murkier.  One ABA Standard for Criminal Justice attempts to provide some guidance on the role of stand-by counsel appointed to assist a pro se defendant. The applicable standard notes that the role of counsel may vary from case to case depending on the role specified by the appointing court. As a result, the standard envisions two types of stand-by counsel: A stand-by counsel appointed to actively assist a defendant and stand-by counsel appointed to assist only upon request from a defendant.

"(a) Defense counsel whose duty is to actively assist a pro se accused should permit the accused to make the final decisions on all matters, including strategic and tactical matters relating to the conduct of the case.

"(b) Defense counsel whose duty is to assist a pro se accused only when the accused requests assistance may bring to the attention of the accused matters beneficial to him or her, but should not actively participate in the conduct of the defense unless requested by the accused or insofar as directed by the court."

ABA Standards for Criminal Justice, Defense Function, Standard 4-3.9.

The underlying theme within the Standard actually provides some useful instruction when one is appointed as stand-by counsel. That is, the Standard envisions that the trial court should be asked to provide guidance on the ethical responsibilities and limitations on the role of stand-by counsel in a specific case. The concept of an attorney providing limited services is not new. The existing Rules of Professional Conduct contemplate that an attorney may provide a client with "unbundled" services - that is, limited and specific services - as long as those services are clearly defined. NHRPC 1.2(f) and (g).

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.

Given the constitutional principles described above, the instructions issued by the trial court will likely need to be developed through consultation between the court and the defendant, and not simply imposed.

It may also be wise for stand-by counsel to seek orders (consistent with the above), including clear statements that:

  • The defendant alone is responsible for the preparation and presentation of that defendant's defense.
  • Communications between the pro se defendant and stand-by counsel are privileged, and that information obtained in the limited representation of the defendant is confidential.
  • The professional conduct rules applicable to conflicts of interest govern the relationship between stand-by counsel and the defendant.
  • The rules governing frivolous claims, requests and defenses (NHRPC 3.1 and 3.4(d)) shall not apply absent advice from stand-by counsel to the defendant to undertake such conduct.
  • Stand-by counsel is not an advocate, and will play no advocacy role in hearings, pleadings, or at trial.
  • Stand-by counsel shall not assume the role of advocate should the defendant have a change of mind immediately before or during the trial. See State v. Ayer, 150 N.H. 14 at 28-29 (trial at which the defendant proceeds pro se for some portions and through counsel for others constitutes a "structural defect" requiring reversal).
  • The defendant does not have the option of withdrawing the request to represent himself/herself and requesting that standby counsel serve as counsel in the traditional sense, unless the court, in its discretion, grants a continuance of the trial.
  • During trial, stand-by counsel is appointed to answer the defendant's questions of law and courtroom procedure, but may not interject himself/herself into the case without the consent of the defendant.

In conclusion, despite the limitations which face stand-by counsel, serving as stand-by counsel is not per se unethical. However, stand-by counsel would be wise to seek instruction and guidance from the trial court on a case-by-case basis, to define those responsibilities which stand-by counsel must undertake, and to outline for the defendant the consequences of self-representation.

(Mike Frisch)

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