Does a court-appointed lawyer act unethically by filing an appeal the lawyer thinks is frivolous when the indigent client insists on appealing?

Plain-English summary

A lawyer who represents indigent defendants by court appointment asked about his ethical duties when the defendant insists on appealing but the lawyer believes the appeal is groundless and frivolous. The committee framed the dilemma: failing to commence the appeal could be seen as violating DR 7-101(A) and DR 1-102(A)(5) and the attorney's oath, while commencing a frivolous appeal could be seen as violating DR 7-102(A)(1) and DR 1-102(A)(5).

The committee resolved the question through the controlling case law on appointed counsel. Under Anders v. California, counsel who finds an appeal wholly frivolous must so advise the court and seek leave to withdraw, accompanied by a brief referring to anything in the record that might arguably support the appeal, after which the court, not counsel, decides whether the appeal is frivolous. The committee traced Baggett v. Wainwright, Frizzell v. State, and State v. Wooden (in which the Florida Supreme Court receded from language suggesting appointed counsel need not appeal a meritless case), concluding that appointed counsel may be ethically required to commence the appeal at the client's insistence even when counsel views it as meritless.

The committee held that commencing such an appeal, complying with Florida Rule of Appellate Procedure 9.140(b)(3), and filing a motion to withdraw with an Anders brief, does not commit an ethical violation. It acknowledged decisions warning that such appeals after a guilty plea could draw sanctions, but observed that the propriety of court sanctions was beyond its authority and that the ultimate determination of frivolousness is for the reviewing court, not counsel.

Currency note

This opinion was issued in 1982, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Must appointed counsel file an appeal the client insists on but counsel thinks is frivolous?

A: The opinion concluded appointed counsel may be ethically required to commence the appeal at the client's insistence, following the Anders procedure, even when counsel believes it meritless.

Q: Is commencing such an appeal an ethical violation?

A: The opinion concluded that commencing the appeal, complying with Rule 9.140(b)(3), and moving to withdraw with an Anders brief is not an ethical violation.

Q: Who decides whether the appeal is frivolous?

A: The opinion concluded that the ultimate decision is reserved to the reviewing court, not the court-appointed counsel.

Background and rules framework

The opinion interprets CPR DR 7-101(A) (zealous representation), DR 7-102(A)(1) (not asserting frivolous matters), and DR 1-102(A)(5), against the constitutional duties of appointed counsel under Anders. These correspond to Model Rule 1.2 (scope and the client's decisions) and Model Rule 3.1 (meritorious claims and contentions), and Florida Rule of Appellate Procedure 9.140(b)(3).

Citations and references

Rules of Professional Conduct:

• CPR DR 1-102(A)(5); DR 7-101(A); DR 7-102(A)(1)
• Fla. R. App. P. 9.140(b)(3); Integration Rule 11.02

Cases:

• Anders v. California, 386 U.S. 738 (1967)
• Baggett v. Wainwright, 229 So.2d 239 (Fla. 1969)
• Frizzell v. State, 238 So.2d 67 (Fla. 1970)
• State v. Wooden, 246 So.2d 755 (Fla. 1971)
• Reed v. State, 378 So.2d 899 (Fla. 1st DCA 1980); Lawrence v. State, 385 So.2d 167 (Fla. 5th DCA 1980); Correal v. State, 387 So.2d 524 (Fla. 4th DCA 1980); Robinson v. State, 373 So.2d 898 (Fla. 1979)

See also

• FL Bar Ethics Op. 86-3: Defense Counsel Disclosing Prior Convictions at Sentencing
• FL Bar Ethics Op. 90-1: Criminal Client Fleeing to Avoid a Court Appearance

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-81-9/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-81-9-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 81-9
February 15, 1982
Advisory ethics opinions are not binding.

A court-appointed attorney who, at the insistence of his client and in accordance with approved procedure, commences an appeal he believes to be frivolous may not thereafter be said to have acted unethically in commencing the appeal. The ultimate decision regarding whether the indigent defendant's appeal is frivolous appears to be reserved to the reviewing court, to the exclusion of personal determination by court-appointed counsel.

CPR: DR 1-102(A)(5), DR 7-101(A)
Rules: Fla.R.App.P. 9.140(b)(3); Integration Rule 11.02
Cases: Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Baggett v. Wainwright, 229 So.2d 239 (Fla. 1969); Frizzell v. State, 238 So.2d 67 (Fla. 1970); State v. Wooden, 246 So.2d 755 (Fla. 1971); Reed v. State, 378 So.2d 899 (Fla. 1st DCA 1980); Lawrence v. State, 385 So.2d 167 (Fla. 5th DCA 1980); Correal v. State, 387 So.2d 524 (Fla. 4th DCA 1980), Robinson v. State, 373 So.2d 898 (Fla. 1979)

Chairman Ervin stated the opinion of the committee:

A Florida lawyer who represents indigent defendants by court appointment inquires of his ethical duties regarding the commencement of appeal at the insistence of defendant where the lawyer is of the professional opinion that the appeal is groundless and frivolous. For the purpose of this inquiry it is assumed that the inquiring lawyer's appointment extends to and includes representation of defendant regarding his appellate rights, whatever those may be.

The lawyer's inquiry requires the Committee to refer more extensively to case authority than is ordinary but, in final analysis, poses an ethical inquiry regarding which this Committee may express its advisory opinion. The lawyer's dilemma may be succinctly stated. If the lawyer has a professional duty to commence appellate proceedings and fails to do so, his failure could be construed as violative of DR 7-101(A) and DR 1-102(A)(5), as well as the oath of an attorney and Integration Rule 11.02, which require an attorney to support the Constitution of the United States and the Constitution of the State of Florida.

If the lawyer, on the other hand, has no such professional duty and is of the view that such an appeal is groundless or frivolous, his commencement of the appeal could be construed as violative of DR 7-102(A)(1) as well as DR 1-102(A)(5).

The duties of appointed counsel to indigent defendants have been addressed by the Supreme Court of Florida in published decisions, as well as in the Florida Code of Professional Responsibility. The pronouncement of such duties in specific decisions serves to define the attorney's responsibility just as does the promulgation of the Code.

No consideration of counsel's duty to an indigent defendant is complete without reference to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d. 493 (1967). Therein the court held in effectuation of the constitutional right to assistance of counsel that it was not adequate for appointed counsel to advise the court that the client's cause appeared to be without merit. The court stated that:

Counsel should and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal. (Emphasis supplied.)

Subsequently, in Baggett v. Wainwright, 229 So.2d 239 (Fla. 1969), The Florida Supreme Court held at page 242 in pertinent part:

A chain of decisions subsequent to Douglas v. California, supra, culminating in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), makes it quite clear that the requirement of Douglas is not necessarily met simply by the appointment of counsel to represent an indigent defendant on appeal. The Anders case raised to constitutional proportion certain minimum requirements imposed on a court-appointed counsel who considers his client's appeal to be frivolous. . . . (Emphasis supplied).

From the foregoing, compliance with the Anders, supra, procedure appeared to have been made a part of appointed counsel's duties even though counsel personally viewed the appeal as baseless or frivolous. In Frizzell v. State, 238 So.2d 67 (Fla. 1970), however, the duties of court-appointed counsel seemed clouded by the court's observation at page 70 that:

The public defender's office is not required to appeal a case which has no merit. . . .

Shortly thereafter, however, in State v. Wooden, 246 So.2d 755 (Fla. 1971), the Florida Supreme Court again addressed the issue and quoted from the earlier Anders v. California decision, supra, as setting forth minimum requirements imposed upon court-appointed counsel. The court expressly held at page 758 that:

In light of Anders v. California, supra, and Baggett v. Wainwright, supra, therefore, we hereby recede from the language in Frizzell v. State, supra, suggesting that court-appointed counsel need not appeal a case which he determines is without merit.

From the foregoing it appears that court-appointed counsel may be ethically required to commence an appeal on behalf of an indigent defendant at the insistence of the client even if counsel is of the view that the appeal is wholly without merit or frivolous. The above-quoted commands simply cannot be construed to instruct or authorize court-appointed counsel to refuse to commence an appeal and let the appeal time run where the appeal appears to be frivolous, but the client insists upon an appeal. See also Rule 9.140(b)(3), Florida Rules of Appellate Procedure, and Reed v. State, 378 So.2d 899 (Fla. 1st DCA 1980). Certainly, in light of the foregoing commands, court-appointed counsel does not appear to commit any ethical violation or transgression by the commencement of such an appeal, compliance with Rule 9.140(b)(3)(A), and filing of a motion for leave to withdraw accompanied by an Anders brief.

The Committee is aware of Lawrence v. State, 385 So.2d 167 (Fla. 5th DCA 1980), referring to such an appeal after a guilty plea as having been commenced for reasons "unknown" to the court and characterizing same as "taken against good faith." More recently, in Correal v. State, 387 So.2d 524 (Fla. 4th DCA 1980), under similar circumstances the court described such appeals as "frivolous" and concluded by stating:

Such conduct in the future will be met with appropriate sanctions.

Even after a guilty plea, however, appeal may legitimately be directed to a class of issues. Robinson v. State, 373 So.2d 898 (Fla. 1979). In any event, under the commands of the Florida Supreme Court in State v. Wooden, supra, the ultimate decision whether the indigent defendant's appeal is frivolous appears to be reserved to the reviewing court, to the exclusion of personal determination by court-appointed counsel.