Academic journal article American Criminal Law Review

Ethical Guidance for Standby Counsel in Criminal Cases: A Far Cry from Counsel?

Academic journal article American Criminal Law Review

Ethical Guidance for Standby Counsel in Criminal Cases: A Far Cry from Counsel?

Article excerpt

"All I suggested to the Court, and [the defendant] is in agreement, that I would act as standby counsel. That's a far cry from co-counsel."


      A. Is there a Lawyer-Client Relationship between the Pro Se
         Defendant and Standby Counsel?
      B. Application of Ethical Rules in the Absence of an Ongoing
         Client-Lawyer Relationship
      C. Application of Ethical Rules if Standby Counsel and the
         Pro Se Defendant have a Client-Lawyer Relationship
         1. Confidentiality and the Attorney-Client Privilege
         2. Avoidance of Conflict of Interest
         3. Duty of Loyalty
         4. Standby Counsel as Counselor
         5. Standby Counsel as a Source of Information
         6. Standby Counsel as Advocate
         7. Pro Se Defendant with Diminished Capacity


An accused defendant has a constitutional right to represent herself. (2) However, if the defendant exercises that right, the trial court may assign an attorney to assist the defendant as standby counsel. The court may hope standby counsel will reduce the burden of presiding over the trial of a pro se criminal defendant and may help avert an unfair trial. (3) But the appointment as standby counsel places the attorney in a role where she cannot assume the normal rules governing the attorney-client relationship apply and must adjust her conduct accordingly.

Suppose Lee, an experienced criminal defense attorney, is appointed to act as standby counsel to pro se defendant Don. Can Lee assure Don that their communications are shielded by the rules of confidentiality and privilege? If Don files a civil suit against Lee, does that create a conflict of interest that requires Lee to withdraw as standby counsel? How should Lee respond if Don advances a defense Lee believes lacks legal or factual merit? What if Don wants to elicit testimony Lee knows to be false? When, if ever, can Lee advocate against Don or give the court information contrary to Don's interest? Is Lee's obligation different if Don is mentally impaired? Knowing she may ultimately be called on to assume representation of Don, can Lee obtain access to sufficient discovery information and defense investigation to be prepared? The usual professional and ethical guides to attorney conduct may not clearly resolve these issues.

In an earlier article, I advocated for a stronger role for standby counsel. (4) In this article, I explore the ethical framework within which standby counsel operates. (5) Standby counsel inhabits a treacherous zone of representation, directed by the court to assist a pro se defendant who exercises an unusual level of control and may want no assistance whatsoever. Within that relationship, counsel must respect the defendant's constitutional right to self-representation. (6) Counsel must not undermine either the defendant's actual control of the defense or the appearance that the defendant controls the defense. (7) But there is little guidance as to what is expected of standby counsel. (8) Courts that appoint standby counsel express diametrically opposed understandings of the role: some direct standby counsel only to be available and provide advice if the defendant seeks it, (9) while others expect standby counsel to be sufficiently prepared to assume representation of the defendant if the defendant abandons pro se representation. (10) Some courts expect standby counsel to provide the court with information. (11) Others appoint standby counsel to be a resource and support for the defendant. In any case, the trial court could specify the role of standby counsel, clearly communicating any expectations or limitations to the defendant during the waiver colloquy and to the attorney assigned as standby counsel. (12) More often, however, the courts appear not to do so, leaving counsel to seek such guidance elsewhere. …

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