Ethical guidance for standby counsel in criminal cases: a far cry from counsel?

• Author: Poulin, Anne Bowen

"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."

TABLE OF CONTENTS I. INTRODUCTION II. STANDBY COUNSEL AND THE CONSTITUTIONAL RIGHT TO SELF-REPRESENTATION III. ETHICAL GUIDANCE 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 IV. CONCLUSION I. INTRODUCTION

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.

Counsel is left to navigate these waters with only ambiguous ethical guidance. Counsel may turn to the usual sources: the Model Rules of Professional Conduct, the ABA Criminal Justice Standards, and the Restatement (Third) of the Law Governing Lawyers. Those sources offer no clear guidance. It is not even clear that the relationship between the pro se defendant and standby counsel is a client-lawyer relationship governed by the rules of professional conduct. However, even if the rules apply, they do not neatly fit the relationship between the pro se defendant and standby counsel. The relationship is sufficiently different from the usual attorney-client relationship that the import of the rules in this context warrants special consideration. (13)

This Article examines the ethical obligations of standby counsel. Part II of the Article sets out the constitutional law governing the right to self-representation and the role of standby counsel. In Part III, the Article turns to the issue of ethical guidance, considering first whether there is a lawyer-client relationship between the pro se defendant and standby counsel and then moving on to consider the way in which the ethical rules apply to standby counsel. The discussion demonstrates that standby counsel should not think of herself as a far cry from ordinary counsel. Indeed, standby counsel should strive to fulfill most of the ethical obligations required of ordinary counsel. Unless standby counsel meets these obligations, counsel's utility to the pro se defendant and to the court will be severely restricted.

2. STANDBY COUNSEL AND THE CONSTITUTIONAL RIGHT TO SELF-REPRESENTATION

   Two decisions of the Supreme Court define the constitutional status of standby counsel. In Faretta v. California the Court recognized a criminal defendant has a right under the Sixth Amendment to represent herself. (14) That right is not violated if the court appoints standby counsel to aid the pro se defendant, (15) although the pro se defendant cannot insist on assistance of counsel. (16) In McKaskle v. Wiggins, (17) the Court considered the role of standby counsel and defined the constitutional limitations of that role. The framework created by these two decisions forces courts to walk a fine line between violating the defendant's Sixth Amendment right to assistance of counsel and violating the defendant's right to proceed pro se, placing standby counsel in an ethical twilight zone. (18)

   Faretta created tension between the defendant's right to proceed pro se and society's interest in maintaining the fairness of the criminal justice system. One way to avoid an unfair trial, as well as to guide an earnest pro se defendant or check an unruly one, is to appoint standby counsel. (19) In Faretta, the Court noted the pro se defendant must comply with the procedural and substantive rules that normally govern a trial. (20) This requirement to comply with rules written for lawyers, however, may frustrate an unassisted pro se defendant. The Court stated standby counsel could be appointed "to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant's self-representation is necessary." (21) Moreover, the Court emphasized that a trial court may appoint standby counsel even over the defendant's objection. (22) Thus, the trial court may decline to appoint standby counsel. Correspondingly, if the court elects to appoint standby counsel the court has wide latitude to define the expectations and duties that apply to standby counsel in that case.

   In McKaskle, the Court clarified the role of standby counsel. The pro se defendant, Wiggins, alleged that standby counsel's active involvement in the trial violated his Sixth Amendment right to represent himself. (23) Wiggins invoked his right to represent himself at trial, and the court appointed two lawyers as standby counsel. As the case progressed, Wiggins repeatedly changed his mind about what he wanted standby counsel to do. At times he objected to their very presence; at other times, he consulted with them or asked them to take over aspects of the case. Standby counsel took an active role in the trial, arguing legal points, performing specific tasks, and occasionally making motions over Wiggins' objection. Once convicted, Wiggins complained that standby counsel had been overzealous and that their "distracting, intrusive, and unsolicited participation" had interfered with his Faretta right to self-representation. (24) The Supreme Court rejected his argument that standby counsel could not take an uninvited, active role in the trial, and concluded that Wiggins' attorneys had not overstepped the constitutional limits on their role. (25)

   Nevertheless, in McKaskle, the Court stated the right recognized in Faretta "exists to affirm the dignity and autonomy of the accused and to allow the presentation of what may, at least occasionally, be the accused's best possible defense." (26) The Court held the right to self-representation has two dimensions. First, the pro se defendant has the right to actually control the defense. Second, the defendant has the right to have the jury perceive her as controlling the defense. (27) These guarantees of actual and perceived control preclude standby counsel from substantially interfering with significant tactical decisions or "speak[ing] instead of the defendant on any matter of importance." (28) However, as long as standby counsel does not usurp actual control or interfere with the perception of control, standby counsel is permitted to participate actively in the proceedings. (29) The defendant must retain final authority over all decisions, but standby counsel may express disagreement outside the jury's presence without violating the defendant's constitutional rights. (30)

   In sum, the constitutional guidance for standby counsel is limited. The pro se defendant cannot demand the assistance of standby counsel; a court may appoint standby counsel but is not required to. Appointed standby counsel may actively assist...