When a North Carolina lawyer is appointed after a criminal defendant files a pro se motion for appropriate relief, must counsel amend it or tell the court the cited authority is no longer good law?

Plain-English summary

An indigent defendant files a pro se motion for appropriate relief (MAR) challenging a conviction or sentence, and the court appoints counsel under N.C. Gen. Stat. § 7A-451(a)(3), giving counsel roughly 120 days to investigate and file either an amended MAR or written notice of intent not to amend. Pro se MARs often cite case law that has since been overruled. The question is whether, if counsel reasonably believes the MAR is frivolous, counsel must file an amended MAR or tell the court that the cited authority is no longer good law. The committee answers no.

The opinion frames the lawyer's competing duties: as the defendant's advocate, counsel must abide by the client's objectives and consult on means under Rules 1.2 and 1.4, and must provide competent and diligent representation under Rules 1.1 and 1.3, which requires researching the facts and the law cited in the pro se MAR and determining whether a reasonable reading supports the claims and whether there is a non-frivolous, good-faith basis to proceed under Rule 3.1. Rule 3.1 ordinarily bars defending a claim counsel knows is frivolous, but it preserves a criminal defendant's right to require that every element of the case be established.

The committee distinguishes the candor duty. Rule 3.3(a)(2) bars knowingly failing to disclose controlling legal authority directly adverse to the client's position not disclosed by opposing counsel, and legal argument based on a knowingly false statement of law is dishonest to the tribunal. But here the MAR was filed pro se, and counsel made no affirmative false representation; by being appointed, counsel does not assume the defendant's pro se positions. If counsel elects to advance any MAR claim, counsel must satisfy Rules 3.1 and 3.3 as to any statement of law or fact counsel relies on, including statements drawn from the pro se filing. If counsel withdraws before advancing any claim, counsel need not correct the prior pro se filing. The opinion cites 2006 FEO 9 (counsel must withdraw if a civil claim becomes frivolous and the client insists on continuing) and 2008 FEO 17 (counsel may file a notice of appeal that preserves options even without believing the appeal has merit). If counsel reasonably concludes the MAR is frivolous, counsel must so advise the defendant, explain that counsel cannot make arguments counsel believes frivolous, and, if the defendant insists, seek the court's permission to withdraw under Rule 1.16(a).

In practice

Under the North Carolina rules as they stood at the time of the opinion, the committee holds that appointment after a pro se MAR does not make counsel responsible for the defendant's pro se positions. Per the opinion, counsel made no false representation to the court and is not obligated to assume the defendant's position or to correct the pro se filing's outdated authority. The opinion ties counsel's obligations to the path counsel chooses: if counsel advances a MAR claim, the Rule 3.1 (non-frivolous basis) and Rule 3.3 (candor, including the Rule 3.3(a)(2) duty on adverse authority) duties attach to the statements counsel relies on; if counsel withdraws before advancing any claim, counsel need not correct the earlier pro se filing.

The opinion states that where counsel reaches an informed, reasonable conclusion that the MAR is frivolous, counsel must advise the defendant of that conclusion and that counsel is prohibited from affirmatively making an argument counsel believes is frivolous, and must seek the court's permission to withdraw under Rule 1.16(a) if the defendant insists on such arguments.

Common questions

Q: Does appointed counsel have to adopt the defendant's pro se MAR?

A: No. The opinion holds that, by being appointed, counsel is not professionally obligated to assume the defendant's position in the pro se MAR or any other pro se filing.

Q: Must counsel tell the court that authority cited in the pro se MAR was overruled?

A: No, where counsel made no affirmative false representation. The opinion holds counsel need not correct the pro se filing; the Rule 3.3(a)(2) candor duty attaches to authority counsel itself relies on if counsel chooses to advance a claim.

Q: What must counsel do if counsel concludes the MAR is frivolous?

A: Counsel must advise the defendant of that conclusion and that counsel cannot affirmatively make arguments counsel believes are frivolous. Under Rule 3.1, counsel may not defend a claim counsel knows is frivolous, though the rule preserves a criminal defendant's right to require the state to establish every element.

Q: What if the defendant insists counsel make the frivolous arguments anyway?

A: The opinion states counsel must seek the court's permission to withdraw under Rule 1.16(a).

Background and rules framework

The opinion interprets several North Carolina rules in the criminal-appellate setting. Rule 1.2 (Model Rule 1.2) requires counsel to abide by the client's objectives, and Rule 1.4 (Model Rule 1.4) requires consultation on means. Rules 1.1 and 1.3 (Model Rules 1.1 and 1.3) require competent and diligent representation, including researching the facts and law. Rule 3.1 (Model Rule 3.1) bars frivolous claims but allows a criminal defendant's lawyer to require that every element be established. Rule 3.3(a)(2) (Model Rule 3.3) bars knowingly failing to disclose controlling authority directly adverse to the client not disclosed by the opponent. Rule 1.16(a) (Model Rule 1.16) governs mandatory withdrawal.

The committee situates the answer between its prior opinions: 2006 FEO 9 (withdraw when a civil claim becomes frivolous and the client insists on continuing) and 2008 FEO 17 (counsel may file a notice of appeal that preserves the client's options without asserting a particular argument).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.2 / NC Rule 1.2 and Model Rule 1.4 / NC Rule 1.4 (objectives and consultation)
• Model Rule 1.1 / NC Rule 1.1 and Model Rule 1.3 / NC Rule 1.3 (competence and diligence)
• Model Rule 3.1 / NC Rule 3.1 and cmt. [2] (meritorious claims; criminal-defendant exception)
• Model Rule 3.3 / NC Rule 3.3(a)(2) and cmt. [4] (candor; adverse legal authority)
• Model Rule 1.16 / NC Rule 1.16(a) (mandatory withdrawal)

Statutes:

• N.C. Gen. Stat. § 15A-1411 (motion for appropriate relief)
• N.C. Gen. Stat. § 7A-451(a)(3) (appointment of counsel for indigent defendants on a MAR)

Other opinions cited:

• 2006 FEO 9: a lawyer must move to withdraw if, after filing, the lawyer concludes a civil claim is frivolous and the client insists on continuing.
• 2008 FEO 17: a lawyer may sign and file a notice of appeal that preserves the client's options without believing the appeal has merit.

See also

• NC State Bar 2018 FEO 2: Duty to Disclose Adverse Legal Authority
• ABA Formal Op. 07-446: Undisclosed Assistance to Pro Se Litigants
• Alabama Op. 1993-06: Rule 3.3 Duty to Disclose Adverse Information

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2016-formal-ethics-opinion-2/

Original opinion text

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

Inquiry:

A motion for appropriate relief (MAR) is a procedure whereby defendants may challenge a conviction or sentencing. A MAR seeks relief from an error committed at the trial level and may be made before or after the entry of judgment. See N.C. Gen. Stat. §15A-1411. Indigent defendants filing pro se MARs may have legal counsel appointed. See N.C. Gen. Stat. §7A-451(a) (3). Pursuant to the statute and upon request, the court will appoint defense counsel to represent the defendant on the MAR. Defense counsel is generally allowed 120 days to investigate the defendant’s case and file either an amended MAR or a written notice of intent not to file an amended MAR. The district attorney and his or her assistants are responsible for filing a response on behalf of the state.

In support of the defendant’s legal arguments and request for relief, many of the MARs filed by pro se defendants cite case law that has been overruled by an appellate court and is, therefore, no longer binding authority.

If in defense counsel’s informed and reasonable legal opinion the MAR is frivolous, is defense counsel professionally obligated to file an amended MAR or provide written notice to the tribunal that the legal authority cited in the pro se MAR is no longer good law?

Opinion:

No.

This is a difficult position for defense counsel who has an obligation to protect defendant’s constitutional rights and to seek relief from the court, but must also adhere to her duties to the court.

As an advocate for the defendant, defense counsel is duty-bound to abide by the defendant’s decisions concerning the objectives of the representation, and as required by Rule 1.4, to consult with the client as to the means by which they are to be pursued. Rule 1.2. Defense counsel must pursue defendant’s objectives unless doing so would violate the law, a court order, or the Rules of Professional Conduct.

Defense counsel must provide competent and diligent representation to the defendant. Competent and diligent representation requires defense counsel to familiarize herself with the facts in defendant’s underlying criminal matter; research the relevant law, including the statutes and case law cited in the defendant’s pro se MAR; and determine whether a reasonable interpretation of the law cited in the MAR supports the defendant’s claims for relief. See Rule 1.1 and Rule 1.3. Defense counsel must also determine whether there is a good faith basis in law and fact, that is not frivolous, to proceed. See Rule 3.1.

The comment to Rule 3.1 provides,

[w]hat is required of lawyers, however, is that they inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good faith arguments in support of their clients’ positions. Such action is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification, or reversal of existing law.

Rule 3.1, cmt 2.

Ordinarily, defense counsel is prohibited from defending a claim she knows is frivolous. See Rule 3.1. However, as stated in Rule 3.1, “[a] lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding, as to require that every element of the case be established.”

The Ethics Committee has previously opined that a lawyer may not proceed if the lawyer determines that the client’s civil claims are frivolous. In 2006 FEO 9 the Ethics Committee concluded that if after filing a civil complaint the lawyer concludes that pursuit of the lawsuit is frivolous, but the client insists on continuing the litigation, the lawyer must move to withdraw from the representation. But see 2008 FEO 17 (Ethics Committee found that a lawyer may sign and file a notice of appeal although the lawyer did not believe that the appeal had merit because the notice of appeal preserves a client’s options and does not assert a particular legal argument).

In addition to following the requirements of Rule 3.1, defense counsel must follow Rule 3.3, Candor Toward the Tribunal. The rule provides, in pertinent part, that,

[a] lawyer shall not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel...

Rule 3.3(a) (2).

Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case. Rule 3.3, cmt [4].

Under the present circumstances, the MAR was filed pro se by defendant. Defense counsel did not affirmatively make representations to the court that defense counsel knew to be false, inaccurate, or frivolous. Defense counsel, by virtue of being appointed, is not professionally obligated to assume defendant’s position in the pro se MAR or any other pro se filing. If defense counsel elects to advance any potential MAR claims on behalf of defendant, counsel must observe the duties under Rule 3.1 and Rule 3.3 regarding any such claim and statement of law or fact upon which counsel will rely to advance the claim including any statement of law or fact in a previous pro se filing. However, if defense counsel is allowed to withdraw from the representation before advancing any of defendant’s potential MAR claims, counsel is not professionally obligated to correct any previous pro se filing.

If after reviewing the pro se MAR defense counsel reaches an informed and reasonable legal opinion that there is no good faith basis in fact or law for the MAR and that the MAR is frivolous, defense counsel must advise defendant of the same. Defense counsel must further advise defendant that she is prohibited from affirmatively making an argument (oral or written) to the court that she believes is frivolous. If defendant insists that defense counsel make frivolous arguments to the court, defense counsel must seek the court’s permission to withdraw. See Rule 1.16(a).