STAND BY FOR TROUBLE
http://www.abanet.org/journal/redesign/04ethics.html

FROM THE APRIL ABA JOURNAL
PRACTICE STRATEGIES / ETHICS
STAND BY FOR TROUBLE
Exercise Caution When Assisting Pro Se Litigants as Advisory Counsel

BY ELIZABETH COHEN

Hybrid representation. It's sometimes called standby counsel, advisory counsel or amicus counsel.Whatever it's called, it's not a comfortable position to be in.

So what does a lawyer do when he or she is supposed to help a pro se litigant? A defendant in a criminal case has a right to be represented by a lawyer. The defendant also has a right not to be represented by a lawyer.

But the right to not have a lawyer has never been absolute. The trial court has an interest in protecting the integrity of its proceedings and it has the inherent power to protect that interest by appointing a lawyer to help the defendant, whether or not the defendant wants one. McKaskle v. Wiggins, 465 U.S. 168 (1984).

Some recent opinions try to shed a little light on the role of the hapless appointee to a pro se case.

In State v. Silva, 27 P.3d 663 (Wash. 2001), the court granted a criminal defendant's motion to proceed pro se and, over his objection, also appointed standby counsel. Matthew Garrett Silva, the defendant, expected standby counsel to do research and investigation for him. So did the trial court. Counsel, however, maintained that his role was to offer technical assistance during the proceedings and step in should Silva change his mind and request representation.

Eventually the court appointed new standby counsel. New counsel stated that he would not do Silva's research either. Silva was convicted.

The Washington Court of Appeals affirmed the conviction and took the opportunity to clarify the troublesome role of standby counsel.

Both of Silva's lawyers had been concerned that to submit to his demands for support services would have reduced their roles to that of paralegal assistants. Looking to Standard 4-3.9 of the ABA Model Standards for Criminal Justice, Obligations of Hybrid and Standby Counsel, the court agreed. Standby counsel is not in any respect [to] act as an errand runner.

Reaching similar conclusions are State v. Fernandez, 758 A.2d 842 (Conn. 2000), cert. denied, 121 S. Ct. 1247 (2001) (the lawyer's role is to advise on legal and procedural matters; no errands required); and Aycock v. State, 769 So. 2d 523 (Fla. 2000) (standby counsel is not a law clerk or research assistant).

I HAD A FOOL FOR A LAWYER/CLIENT

Dr. Jack Kevorkian argued in an appeal after his celebrated assisted-suicide trial in Michigan that standby counsel had denied him effective assistance. Because he was doing such a poor job of representing himself, he said, counsel should have stepped in and helped him more.

The court rejected this unenviable argument. Since there is no constitutional right to standby counsel, there is no such thing as ineffective assistance of standby counsel.

The court went on to note the danger of standby counsel helping too much, rather than too little. If standby counsel had done more for Kevorkian, he would have been interfering with Kevorkian's right of self-representation.

But just what kind of relationship exists between standby counsel and a pro se litigant? One of the few ethics opinions to tackle the issue squarely, Illinois Ethics Opinion 90-14 (1990), finds that it is a dangerous one:

Requiring counsel to remain in a restricted capacity imposes an unauthorized limitation on the attorney's professional responsibility and impermissibly intrudes on the attorney-client relationship itself.

The court's concern for protecting its proceedings does not, the committee says, justify restrictions that would make the attorney at best a mere adviser and at worst a sergeant-at-arms whose primary responsibility is to assist the court rather than a client.

So when you're caught in the collision between a litigant's interests and the court's systemic interests, be careful. The chief casualty is likely to be your own professional interests.


Elizabeth Cohen, a lawyer at the ABA Center for Professional Responsibility, is assistant editor of the ABA editor of the ABA/BNA Lawyers' Manual on Professional Conduct.

Copyright Family Guardian Fellowship

Last revision: April 03, 2009 07:07 AM
  This private system is NOT subject to monitoring