Evidence shows an increasing number of defendants are exercising their Sixth Amendment right to represent themselves, as established in Faretta v. California, 422 U.S. 806, 832 (1975). While Faretta recognized the accused’s right to self-representation, the Supreme Court explained that proceeding pro se does not excuse lack of compliance with “relevant rules of procedural and substantive law.” Id. at 834 n.46. Recognizing that a typical pro se defendant is not familiar with such rules, the Supreme Court stated that a trial judge may “even over objection of the accused—appoint a ‘standby counsel’ 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.” Id. Just as the number of defendants proceeding pro se has increased, so has the number of standby counsel in state and federal courts.
Standby counsel may assist a defendant in the process of entering a guilty plea or in trial. It is important that standby counsel be available to advise a pro se defendant in the guilty plea context about things such as a plea agreement, forfeited rights, and sentencing issues. Standby counsel is likely to be even more important in cases headed to trial. Trials require a pro se defendant to deal with many more legal issues than a guilty plea, such as jury selection, rules of evidence, and jury instructions. Pro se defendants are much more likely to go to trial than represented defendants. In federal court, 66 percent of pro se defendants go to trial, more than 17 times the percentage of represented defendants who do so. This high trial rate underscores the importance of judges and defense lawyers knowing the ethical obligations of standby counsel.
Unfortunately, there is considerable confusion among both judges and defense counsel concerning the ethical obligations of and limitations on standby counsel. Does appointment as standby counsel create an attorney-client relationship? If not, how should the relationship between standby counsel and a pro se defendant be characterized? What ethical obligations do standby counsel owe the pro se defendant? How active may standby counsel be in shaping the defense? Does the pro se defendant or standby counsel “call the shots” on trial strategy? What guidance should the trial judge provide to standby counsel and the accused concerning the relationship between standby counsel and the pro se defendant? This column examines the ethical obligations of and limitations on standby counsel.
Nine years after the Supreme Court in Faretta recognized the right of self-representation, the Court in McKaskle v. Wiggins, 465 U.S. 168 (1984), further defined the role of standby counsel. In McKaskle, the trial court appointed two lawyers as standby counsel in Carl Wiggins’s state robbery case. During trial, Wiggins at times objected to their presence, but at other times consulted with them. After Wiggins was convicted and sentenced to life imprisonment as a recidivist, he filed a habeas petition alleging that the lawyers’ conduct deprived him of his right to present his own defense. The district court denied the petition, but the court of appeals reversed, holding that “Wiggins’ Sixth Amendment right to self-representation was violated by the unsolicited participation of overzealous standby counsel.” Id. at 173. The court of appeals stated that “standby counsel is ‘to be seen, but not heard.’ . . . his presence is there for advisory purposes only, to be used or not used as the defendant sees fit.” Id. (quoting Wiggins v. Estelle, 681 F.2d 266, 273 (5th Cir. 1982). The Supreme Court reversed, holding that standby counsel’s intrusions during the trial “were simply not substantial or frequent enough to have seriously undermined Wiggins’ appearance before the jury in the status of one representing himself.” Id. at 187.
In McKaskle, the Court explained that the right of self-representation places limits on unsolicited participation by standby counsel. A pro se defendant has the right to control the defense and the right to have the jury perceive that the defendant is conducting his or her own defense. The Court explained: “If standby counsel’s participation over the defendant’s objection effectively allows counsel to make or substantially interfere with any significant tactical decisions, or to control the questioning of witnesses, or to speak instead of the defendant on any matter of importance, the Faretta right is eroded.” Id. at 178.
The usual division of authority between client and counsel is that the client decides the ends of the representation, such as whether to go to trial or enter a guilty plea, and the attorney decides the means, such as the trial strategy, which witnesses to call, and how to question the witnesses. The pro se defendant decides both the ends and the means. As a result, standby counsel has a much more limited role—standby counsel may only express disagreement with the pro se defendant outside the presence of the jury. Otherwise, the accused’s right to self-representation will be violated.
State courts have also addressed the role of standby counsel. Courts view standby counsel as a legal advisor, not as an assistant. For example, State v. Silva, 27 P.3d 663, 677–78 (Wash Ct. App. 2011), cited to several authorities for the proposition that standby counsel’s role as an advisor to the accused does not require performing research errands for the accused, unless ordered by the court. Similarly, in State v. Fernandez, 758 A.2d 842, 852–53 (Conn. 2000), the court concluded that “standby counsel serves as a legal resource to pro se defendants . . . [but] standby counsel does not, however, have any obligation to perform legal research for the defendant.”
The American Bar Association (ABA) Criminal Justice Standards, Defense Function Standard 4-3.9 explains that standby counsel “should permit the accused to make the final decisions on all matters, including strategic and tactical matters” but “may bring to the attention of the accused matters beneficial to him or her.” Standard 4-3.9 further explains that standby counsel should “assist a pro se accused only when the accused requests assistance” and “should not actively participate in the conduct of the defense unless requested by the accused or insofar as directed to do so by the court.” The ABA and some state bar associations have also issued advisory opinions that help answer many questions about standby counsel’s ethical obligations to a pro se defendant.
ABA Ethics Opinion. In ABA Formal Opinion 07-448 (2007), the ABA Standing Committee on Ethics and Professional Responsibility stated that between a pro se defendant and standby counsel, “there is no client-lawyer relationship unless and until the defendant accepts representation.” If and when the pro se defendant requests assistance, then all of the duties a lawyer owes a client are triggered, including the duties of competency under Model Rule 1.1, diligence under Model Rule 1.3, communication under Model Rule 1.4, and exercising independent professional judgment under Model Rule 2.1. If the pro se defendant does not request assistance, the Committee reasoned that standby counsel’s ethical duties to the pro se defendant are limited to the same obligations a lawyer owes to persons other than a client under ABA Rules of Professional Conduct.
New York State Bar Ethics Opinion. The New York State Bar Association Committee on Professional Ethics provided additional guidance in Opinion 949 (2012). It is much more enlightening than the ABA opinion. The New York Committee explained the duties of standby counsel using a spectrum with “inactive” and an “active” ends.
The New York Committee placed a pro se defendant who has not asked standby counsel for advice or assistance at the inactive end of the spectrum and viewed such a defendant as the equivalent of a “prospective client” to whom counsel owes ethical duties under New York’s version of Model Rule 1.18(b). Even if not activated, standby counsel has a duty of confidentiality under Model Rule 1.18(b) not to reveal information learned from the pro se defendant except as Model Rule 1.9 would permit with respect to a former client. Additionally, the Committee found that the concurrent conflict of interest rule, New York’s equivalent of Model Rule 1.7, would prohibit standby counsel from simultaneously representing a party whose interests differ from those of the pro se defendant.
The New York Committee placed in the “middle” of the standby spectrum a situation in which standby counsel assumes specific responsibilities for the pro se defendant. In these situation, the New York Committee stated that New York’s equivalent of Model Rule 1.2(c), which permits a lawyer to limit the scope of representation, comes into play. Model Rule 1.2(c) requires standby counsel to communicate counsel’s understanding of the specific duties requested and explain any changes in the scope of counsel’s involvement to the client if standby counsel’s duties evolve during the course of the litigation.
Finally, the New York Committee explained that the active, or “full representation,” end of the standby spectrum would occur if the defendant requests standby counsel to assume full representation or to take on substantially all representational responsibilities. When full representation occurs, the New York Committee explained that standby counsel becomes “standby” in name only, and all ethical obligations apply.
Other Ethics Opinions. Other state ethics opinions reach conclusions similar to the ABA and New York opinions. For example, New Hampshire Bar Association Ethics Committee Advisory Opinion 2015-16/09 (2016) cautions that standby counsel must “serve as a passive source of information, answering questions of law from the defendant when he or she chooses to ask such questions.” The New Hampshire Committee also advised standby counsel to seek instructions from the court to define standby counsel’s responsibilities and for the trial judge to explain standby counsel’s responsibilities to the pro se defendant.
A judge appointing standby counsel for a pro se defendant plays an important role in protecting the accused’s right of self-representation. ABA Standards for Criminal Justice: Special Functions of the Trial Judge, Standard 6-3.7(c) explains that when standby counsel is appointed to provide assistance only when requested, “the trial judge must ensure that counsel not actively participate in the conduct of the defense unless requested by the accused or directed to do so by the court.” If the judge appoints standby counsel to actively assist the accused, the judge “should ensure that the accused is permitted to make the final decisions on all matters, including strategic and tactical matters relating to the conduct of the case.”
Judges appointing and lawyers acting as standby counsel need to bear in mind several important points to ensure protection of the accused’s right to self-representation: (1) there should be a court order that clearly states what is expected of standby counsel and the limits to standby counsel’s role; (2) the judge should explain the role of standby counsel to the accused in an understandable way; (3) standby counsel must treat the pro se defendant as a client for conflict of interest purposes in case the client seeks the assistance of standby counsel; (4) for confidentiality purposes, standby counsel should treat the pro se defendant as a prospective client; and (5) standby counsel must do sufficient preparation to be ready to provide competent advice and assistance, even to take over the defense if requested by the accused or ordered by the court. Finally, standby counsel also must attend all stages of the proceedings.
