What are the ethical obligations of a lawyer appointed as stand-by counsel for a pro se criminal defendant in New Hampshire?

Plain-English summary

When a criminal defendant chooses self-representation, courts often appoint stand-by counsel, but the role sits uneasily with the usual ethical duties of an advocate. The opinion explains the constitutional backdrop: a defendant who knowingly elects to proceed pro se gives up the right to counsel and to effective assistance (Faretta), and stand-by counsel may not act as an advocate or otherwise undermine the defendant's actual control of the case or the jury's perception that the defendant is self-represented (McKaskle, State v. Ayer). Except when the defendant consents, stand-by counsel is not in control and must be a passive source of information, answering questions of law when asked.

Because this departs from the normal attorney-client model, the opinion treats stand-by counsel's services as a form of "unbundled," limited representation expressly contemplated by Rules 1.2(f) and (g), provided the services are clearly defined. It recommends that stand-by counsel file a motion for instruction asking the trial court to define the role, for example whether counsel must assist with investigation, attend hearings, research specific issues, or only respond to the defendant's requests. It lists clarifying orders counsel may seek, including that the defendant alone is responsible for the defense, that communications are privileged and confidential, that conflict-of-interest rules govern the relationship, that the frivolous-claims rules (Rules 3.1 and 3.4(d)) do not apply absent counsel's advice to pursue such conduct, and that counsel will not assume an advocacy role even if the defendant changes course mid-trial.

The opinion stresses that core duties persist: confidentiality under Rule 1.6 and conflict avoidance under Rule 1.7 remain, and Rule 3.3(a)(3) still requires counsel to address known false evidence, with Rule 1.2(d) barring assistance with fraudulent or criminal acts. The conclusion is that the role is permissible but counsel should seek case-by-case guidance from the court and outline for the defendant the consequences of self-representation.

In practice

The opinion holds that, under the New Hampshire Rules as they stood when it issued, a lawyer may ethically serve as stand-by counsel if the lawyer remains a passive resource rather than an advocate and does not interfere with the defendant's self-representation. It frames the assignment as unbundled, limited-scope representation under Rules 1.2(f) and (g) and recommends a motion for instruction so the trial court defines the role, developed in consultation with the defendant. It confirms that confidentiality (Rule 1.6), conflicts (Rule 1.7), and candor (Rule 3.3(a)(3)) duties continue, and that the frivolous-claims rules apply only if counsel advised the conduct.

Common questions

Q: Is it ethical for a New Hampshire lawyer to serve as stand-by counsel?

A: Yes. The opinion concludes that serving as stand-by counsel is not per se unethical, though counsel must observe the constitutional limits on the role.

Q: What is stand-by counsel allowed to do?

A: The opinion states that, except when the defendant consents, stand-by counsel is not in control of the case and must serve as a passive source of information, answering the defendant's questions of law, rather than acting as an advocate.

Q: How should counsel pin down the scope of the role?

A: The opinion recommends filing a motion for instruction asking the trial court to define counsel's responsibilities, and treats the assignment as limited "unbundled" services under Rules 1.2(f) and (g) that must be clearly defined.

Q: Do confidentiality and conflict rules still apply to stand-by counsel?

A: Yes. The opinion states that confidentiality under Rule 1.6 and the duty to avoid conflicts under Rule 1.7 remain part of the lawyer's obligations in the limited representation.

Q: What if the defendant offers false evidence?

A: The opinion notes that Rule 3.3(a)(3) still applies, so stand-by counsel must address evidence the lawyer knows to be false, and Rule 1.2(d) bars assisting fraudulent or criminal conduct.

Background and rules framework

The opinion reads New Hampshire's competence rule (Rule 1.1), the scope-of-representation rule (Rule 1.2, including the unbundled-services provisions in 1.2(f) and (g) and the 1.2(d) bar on assisting crime or fraud), the confidentiality rule (Rule 1.6), the conflicts rule (Rule 1.7), and the litigation rules (Rule 3.3(a)(3) candor and Rules 3.1 and 3.4(d) on frivolous matters) against the constitutional law of self-representation. It draws on Faretta, McKaskle, and New Hampshire decisions including State v. Ayer, Panzera, and Barham, and on the ABA Criminal Justice Standards.

Citations and references

Rules of Professional Conduct:

• MR 1.2 / NH Rule 1.2(a), (d), (f), (g) (scope of representation; unbundled services)
• MR 1.1 / NH Rule 1.1 (competence)
• MR 1.6 / NH Rule 1.6 (confidentiality of information)
• MR 1.7 / NH Rule 1.7 (conflicts of interest)
• MR 3.3 / NH Rule 3.3(a)(3) (candor; false evidence); also NH Rules 3.1, 3.4(d)

Cases:

• Faretta v. California, 422 U.S. 806 (1975), right to self-representation
• McKaskle v. Wiggins, 465 U.S. 168 (1984), constitutional limits on stand-by counsel
• State v. Ayer, 150 N.H. 14 (2003); State v. Panzera, 139 N.H. 235 (1994); State v. Barham, 126 N.H. 631 (1985)

Other opinions cited:

• North Carolina State Bar Op. RPC 198 (1995): stand-by counsel in a capital case
• New York State Bar Op. 949 (2012): obligations of stand-by counsel
• ABA Standards for Criminal Justice, Defense Function, Standard 4-3.9

See also

• ABA Formal Op. 07-446: Undisclosed Legal Assistance to Pro Se Litigants
• ABA Formal Op. 472: Communication With a Person Receiving Limited-Scope Services

Source

• Landing page: https://www.nhbar.org/ethics/opinion-2015-16-09
• Original PDF: https://nhba.s3.amazonaws.com/wp-content/uploads/2019/11/14142644/2015-16-09-REFORMATTED-Ethical-Obligations-of-Stand-By-Counsel.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.
NEW HAMPSHIRE BAR ASSOCIATION

                       Ethical Obligations of Stand-By Counsel

                   Ethics Committee Advisory Opinion #2015-16/09

ABSTRACT:

   What are the ethical responsibilities of an attorney appointed as stand-by counsel in a

criminal matter?

ANNOTATIONS:

   “Standby counsel” is not an advocate or “counsel” in any normal sense. If stand-by

counsel acts as an advocate or in any way undermines the pro se defendant’s control of that
defendant’s own case, the defendant’s right to self-representation may be violated.

   Except when the defendant consents, standby counsel is not in control of the case.

Standby counsel must instead serve as a passive source of information, answering questions of
law from the defendant when he or she chooses to ask such questions.

    Serving as stand-by counsel is not unethical. However, stand-by counsel would be wise

to seek instruction and guidance from the trial court on a case-by-case basis, define the
responsibilities stand-by counsel must undertake, and outline for the defendant the consequences
of self-representation.

OPINION:

   BACKGROUND:

    Traditionally, stand-by counsel is appointed in criminal cases when a defendant wishes to

represent himself/herself, but the trial court believes that given the seriousness of the crime, the
nature of the case, or other factors, the defendant should have the services of stand-by counsel
available to him/her. However, in appointing counsel, the court must be sensitive to the
defendant’s constitutional right to represent himself or herself and must not materially interfere
with or unduly burden the exercise of that right. As a result, the ethical obligations of stand-by
counsel are not well-defined. It comes as no surprise that stand-by counsel faces uncertainty
about his/her obligations to the defendant, and to the justice system itself – which ultimately
seeks to ensure fair trials.

   If a defendant chooses self-representation, that defendant’s right to counsel is

extinguished. State v. Panzera, 139 N.H. 235, 238 (1994); State v. Barham, 126 N.H. 631, 636
(1985). As a direct result, the corollary right of effective assistance of counsel is also
extinguished. “A defendant who has made a knowing and voluntary decision to represent himself
has no one but himself to blame for his mistakes. He cannot later claim ineffective assistance of

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counsel when he has served as his own lawyer.” Faretta v. California, 95 S.Ct. 2525, 2541, n. 46
(1975).
Notwithstanding the jurisprudence saddling the defendant with full responsibility for the
decision to represent himself/herself, courts have almost invariably appointed “stand-by counsel”
to assist pro se defendants in serious criminal cases. However, “standby counsel” is not an
advocate or “counsel” in any normal sense. In fact, if stand-by counsel acts as an advocate or in
any way undermines the pro se defendant’s control of that defendant’s own case, the defendant’s
right to self-representation may be violated. McKaskle v. Wiggins, 104 S.Ct. 944, 950
(1984); State v. Ayer, 150 N.H. 14, 28 (2003).

The United States Supreme Court has identified constitutional limitations on the role of

standby counsel: First, the pro se defendant is entitled to preserve actual control over the case he
chooses to present to the jury. Second, participation of standby counsel without the defendant’s
consent should not be allowed to destroy the jury’s perception that the defendant is representing
himself. McKaskle, 104 S.Ct. at 951. In essence, except when the defendant consents, standby
counsel is not in control of the case. Standby counsel must instead serve as a passive source of
information, answering questions of law from the defendant when he/she chooses to ask such
questions.

And yet, there are unquestionably benefits to the appointment of stand-by counsel, especially

in difficult, complex criminal cases. Defendants who represent themselves almost never have any
understanding of court procedure or the law. Experience shows that they do a better job of
representing themselves if they have stand-by counsel available to provide information and offer
guidance, on request, regarding court procedures and strategies for defending a case. Thus,
stand-by counsel helps protect an important constitutional right. Additionally, courts and
prosecutors are in a very difficult position when a defendant exercises the right to self-
representation. The defendant is often suspicious of the court, defense counsel and prosecutors.
Conducting discovery, serving pleadings, scheduling hearings, etc., are all much more difficult
because the defendant is unfamiliar with these procedures and even intimidated by the prosecutor
and court officials. The situation is even worse when the defendant is incarcerated pretrial. Just
as stand-by counsel is able to help the defendant exercise the right to self-representation, stand-
by counsel is also able to facilitate communication between the defendant and the court or
prosecutor. This makes these cases less burdensome on the criminal justice system and helps
move the cases towards resolution. Additionally, there is a benefit to the courts in that
disruptions and delays may be reduced when stand-by counsel assists a pro
se defendant. McKaskle, 104 S.Ct. at 954.

For these reasons, and not surprisingly, courts in New Hampshire and elsewhere appoint

stand-by counsel when needed. The practice is long-standing and has been addressed by both the
New Hampshire Supreme Court and the United States Supreme Court. Both courts have
approved of stand-by counsel provided counsel’s conduct does not unconstitutionally interfere
with the defendant’s right of self-representation.

But based on the foregoing background, a lawyer is hard-pressed to serve as stand-by counsel
and still comply with his or her customary ethical duties as an advocate under New Hampshire
Rule of Professional Conduct (NHRPC) 1.1. Diligent and competent counsel does not “stand-by”

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passively and simply respond to the client when the client takes the initiative. Diligent and
competent counsel does not leave it to the client to investigate the case, identify the applicable
law, identify issues, and develop a strategy for achieving the goals sought by the client. NHRPC
1.1(c). Likewise, in the traditional attorney-client model, although a defendant normally
determines the goals of representation, it is the lawyer who has both the authority and the
responsibility to determine the means of attempting to achieve those goals. NHRPC 1.2(a).
Yet, if standby counsel were to represent a defendant in such a manner, the pro se defendant’s
constitutional right to self-representation would be violated. The case law is clear that actions by
the lawyer which interfere with the client’s right to self-representation, or even the jury’s
perception of that right, are not permitted. See, e.g., McKaskle, 104 S.Ct. at 950-951. In short,
the notion of “standing by,” as required by the defendant’s right of self-representation, and the
notion of “counsel,” as envisioned by the professional conduct rules, are inconsistent.

   ANALYSIS

    A threshold question is whether service as a stand-by counsel creates an attorney-client

relationship between that counsel and the pro se defendant. If, for example, the relationship of
stand-by counsel and the pro se defendant is not an attorney-client relationship, then the analysis
of the lawyer’s ethical duties to that defendant ends there. The Committee believes that although
the ethical responsibilities of stand-by counsel substantially depart from those in a typical
attorney-client relationship, as noted below, such a relationship arises despite these limitations.
Recognition of this determination is important because certain fundamental duties and rights
such as the preservation of client confidentiality (NHRPC 1.6) and attorney-client privilege, and
the duty to avoid conflicts of interest (NHRPC 1.7) remain as part of an attorney’s
responsibilities to an otherwise self-represented defendant.

   From there, the ethical analysis grows murkier.1 One ABA Standard for Criminal Justice

attempts to provide some guidance on the role of stand-by counsel appointed to assist a pro
se defendant. The applicable standard notes that the role of counsel may vary from case to case
depending on the role specified by the appointing court. As a result, the standard envisions two
types of stand-by counsel: A stand-by counsel appointed to actively assist a defendant and stand-
by counsel appointed to assist only upon request from a defendant.

   (a) Defense counsel whose duty is to actively assist a pro se accused should
   permit the accused to make the final decisions on all matters, including strategic
   and tactical matters relating to the conduct of the case.

   (b) Defense counsel whose duty is to assist a pro se accused only when the
   accused requests assistance may bring to the attention of the accused matters
   beneficial to him or her, but should not actively participate in the conduct of the
   defense unless requested by the accused or insofar as directed by the court.

ABA Standards for Criminal Justice, Defense Function, Standard 4-3.9.

   The underlying theme within the Standard does provides some useful instruction if one is

appointed as stand-by counsel. That is, the Standard envisions that the trial court should be asked

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to provide guidance on the ethical responsibilities and limitations on the role of stand-by counsel
in a specific case. The concept of an attorney providing limited services is not new. The existing
Rules of Professional Conduct contemplate that an attorney may provide a client with
“unbundled” services – that is, limited and specific services – provided those services are clearly
defined. NHRPC 1.2(f) and (g).

   In this vein, stand-by counsel may be wise to file a motion for instruction upon

appointment as stand-by counsel. That motion may seek instruction from the trial court about
whether, based on the circumstances of the case, counsel must:

1. Assist in any investigation of the case.

2. Identify or prioritize those issues on which the defendant should focus attention.

3. Develop a full understanding of the prosecution’s records, documents, reports and other
   investigations pertaining to the case.

4. Attend all pre-trial hearings and conferences in the case.

5. Assist in specific areas or aspects of the case (e.g. – discovery), given the facts of the case.

6. Undertake research and render advice about specific areas of the law applicable to the case.

7. Interview, research or develop knowledge about witnesses, and/or assist the defendant in
   locating witnesses helpful to the defense, including expert witnesses.

8. Communicate with the pro se defendant to offer assistance versus responding to requests for
   assistance, only.

9. Bring to the attention of the defendant matters beneficial to the defendant.

10. Consistent with NHRPC 3.3(a)(3), reveal that evidence offered by the defendant is false, if
    stand-by counsel knows such evidence is false, or to affirmatively counsel the defendant if
    the defendant intends to commit a fraudulent or criminal act. See NHRPC 1.2(d).

11. Seek more defined guidance at specific points in a case, such as competency hearings, pre-
    trial discovery, trial, and sentencing.

    Given the constitutional principles described above, the instructions issued by the trial court
    will likely need to be developed through consultation between the court and the defendant, and
    not simply imposed. It may also be wise for stand-by counsel to seek orders (consistent with the
    above), including clear statements that:

12. The defendant alone is responsible for the preparation and presentation of that defendant’s
    defense.

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    2. Communications between the pro se defendant and stand-by counsel are privileged, and that
    information obtained in the limited representation of the defendant is confidential.

13. The professional conduct rules applicable to conflicts of interest govern the relationship
    between stand-by counsel and the defendant.

14. The rules governing frivolous claims, requests and defenses (NHRPC 3.1 and 3.4(d)) shall
    not apply absent advice from stand-by counsel to the defendant to undertake such conduct.

15. Stand-by counsel is not an advocate, and will play no advocacy role in hearings, pleadings, or
    at trial.

16. Stand-by counsel shall not assume the role of advocate should the defendant have a change
    of mind immediately before or during the trial. See State v. Ayer, 150 N.H. 14 at 28-29 (trial
    at which defendant proceeds pro se for some portions and through counsel for others
    constitutes “structural defect” requiring reversal).

17. The defendant does not have the option of withdrawing the request to represent
    himself/herself and requesting that standby counsel serve as counsel in the traditional sense,
    unless the court, in its discretion, grants a continuance of the trial.

18. During trial, stand-by counsel is appointed to answer the defendant’s questions of law and
    courtroom procedure, but may not interject himself/herself into the case without the consent
    of the defendant.

    In conclusion, despite the limitations which face stand-by counsel, serving as stand-by
    counsel is not per se unethical. However, stand-by counsel would be wise to seek instruction and
    guidance from the trial court on a case-by-case basis, to define those responsibilities which
    stand-by counsel must undertake, and to outline for the defendant the consequences of self-
    representation.

ENDNOTES:

[1] See, e.g., Responsibilities of Stand-By Counsel Upon the Assumption of the Defense in a
Capital Case, North Carolina State Bar Op. RPC 198 (1995); Obligations of Stand-By Counsel,
New York State Bar Association Ethics Op. 949 (2012); see also Poulin, The Role of Standby
Counsel in Criminal Cases: In the Twilight Zone of the Criminal Justice System, 75 N.Y.U. Law
Rev. 676 (June 2000).

NH RULES OF PROFESSIONAL CONDUCT:
NHRPC 1.1
NHRPC 1.1(c)
NHRPC 1.2(a)
NHRPC 1.2(d)
NHRPC 1.2(f)
NHRPC 1.2(g)

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NHRPC 1.6
NHRPC 1.7
NHRPC 3.1
NHRPC 3.3(a)(3)
NHRPC 3.4(d)

SUBJECTS:
Competence
Scope of Representation
Limited Representation
Meritorious Claims and Contentions
Candor to the Tribunal

• By the NHBA Ethics Committee
This opinion was submitted for publication to the NHBA Board of Governors at its March
3, 2016 meeting.

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