Scholarship@WashULaw

Ethical Responsibilities of Standby Counsel

Document Type

Article

Publication Date

2021

Publication Title

ABA Criminal Justice

Abstract

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 paper examines the ethical obligations of and limitations on standby counsel.

Keywords

Standby Counsel, Pro Se, Pro Se Defendant, Ethics, Faretta, Trial, Ethics, Legal Ethics, Professional Responsibility, Judges, Criminal Procedure

Publication Citation

Peter A. Joy & Kevin C. McMunigal, Ethical Responsibilities of Standby Counsel, 36 ABA Criminal Justice 62 (2021)

Link

Share

COinS