What must a court-appointed lawyer do for an indigent prisoner's case the lawyer personally believes is frivolous?

Plain-English summary

The inquiry asked about the ethical obligations of an attorney the court appoints to represent an indigent prisoner, when the attorney believes the cause is frivolous or unsupported by any facts. The opinion grounded its analysis in Canon 7 of the Code of Professional Responsibility, under which a lawyer owes a duty to both the client and the legal system to represent the client zealously within the bounds of law and the Code. It quoted the relevant Ethical Considerations: EC 7-1 (a lawyer's professional responsibility to help members of the public secure and protect legal rights and to present any lawful claim for adjudication), EC 7-2 (the bounds of the law are often genuinely uncertain), EC 7-3 (a lawyer serving as advocate should resolve doubts about the bounds of the law in the client's favor), and EC 7-4 (an advocate may urge any permissible construction of the law favorable to the client regardless of the lawyer's own view of its prospects, so long as the position is supported by law or by a good-faith argument for extending, modifying, or reversing the law, though a lawyer may not assert a frivolous position in litigation).

Quoting Anders v. California, 386 U.S. 738 (1967), the opinion explained that the constitutional requirement of substantial equality and fair process is satisfied when counsel acts as an active advocate rather than amicus curiae, and that a no-merit letter does not meet that standard; if counsel finds the case wholly frivolous after a conscientious examination, counsel should so advise the court and request permission to withdraw, accompanied by a brief referring to anything in the record that might arguably support the case, with a copy furnished to the indigent client in time to raise any points the client chooses, after which the court, not counsel, decides whether the case is wholly frivolous. The opinion also quoted Powell v. Alabama, 287 U.S. 45 (1932), on the importance of the right to counsel, and cited Caruth v. Geddes, 443 F. Supp. 1295 (1978). Applying this framework, the opinion concluded that appointed counsel is ethically obligated to act as an active advocate, must support the client's cause to the best of the attorney's ability, and may seek to withdraw only after a conscientious finding of total frivolousness, accompanied by an Anders-style brief and notice to the client, with the court making the final frivolousness determination.

Currency note

This opinion was issued in 1985, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. 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: Can a court-appointed lawyer simply decline to pursue an indigent client's case the lawyer thinks is weak?

A: No. The opinion requires the lawyer to act as an active advocate and support the client's cause to the best of the lawyer's ability; only a conscientious finding that the cause is wholly frivolous permits a withdrawal request.

Q: What must accompany a request to withdraw from a frivolous cause?

A: A brief referring to anything in the record that might arguably support the cause, with a copy furnished to the indigent client in time to raise any points the client wishes to raise.

Q: Who ultimately decides whether the cause is frivolous?

A: The court, not appointed counsel, makes that determination after reviewing counsel's brief and any points the client raises.

Background and rules framework

The opinion applied Canon 7 of the Code of Professional Responsibility and its Ethical Considerations EC 7-1 through EC 7-4 (zealous advocacy within the bounds of law), together with the Anders v. California procedure for withdrawal from a frivolous cause. The modern correlates are Model Rule 3.1 (meritorious claims and contentions) and Model Rule 1.16 (declining or terminating representation), cited here as navigational cross-references rather than rules the opinion itself applied.

Citations and references

Cases:

• Anders v. California, 386 U.S. 738 (1967), procedure for appointed counsel to withdraw from a frivolous cause
• Powell v. Alabama, 287 U.S. 45 (1932), the right to be heard includes the right to counsel
• Caruth v. Geddes, 443 F. Supp. 1295 (1978)

See also

• FL Ethics Op. 81-9: Court-Appointed Lawyer, Frivolous Appeal
• Tenn. Ethics Op. 85-F-85(a): Appointed Counsel for an Indigent Prisoner in a Civil Case (clarifies this opinion applies to civil appointments)

Source

• Landing page: https://www.tbpr.org/ethic_opinions/85-f-85

Original opinion text

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

85-F-85 - Lawyer appointed to represent indigent prisoner in civil case lawyer believes is frivolous

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 85-F-85

Inquiry is made concerning the ethical obligations of an attorney appointed by the Court to represent an indigent prisoner when the attorney believes the cause is frivolous or that no facts exist in support of the cause.

The Ethical Considerations and Disciplinary Rules embodied in Canon 7 of the Code of Professional Responsibility provide that the attorney has a duty, both to his client and to the legal system, to represent the client zealously within the bounds of law and the Code of Ethics.

The Ethical Considerations of the Code speak to the issue and offer the following aspirational objectives:

EC 7-1. The professional responsibility of a lawyer derives from his membership in a profession which has the duty of assisting members of the public to secure and protect available legal rights and benefits. In our government of laws and not of men, each member of our society is entitled to have his conduct judged and regulated in accordance with the law; to seek any lawful objective through legally permissible means; and to present for adjudication any lawful claim, issue or defense.

EC 7-2. The bounds of the law in a given case are often difficult to ascertain. The language of legislative enactments and judicial opinions may be uncertain as applied to varying factual situations. The limits and specific meaning of apparently relevant law may be made doubtful by changing or developing constitutional interpretations, inadequately expressed statutes or judicial opinions, and changing public and judicial attitudes. Certainty of law ranges from well-settled rules through areas of conflicting authority to areas without precedent.

EC 7-3. While serving as advocate, a lawyer should resolve in favor of his client doubts as to the bounds of the law.

EC 7-4. The advocate may urge any permissible construction of the law favorable to his client, without regard to his professional opinion as to the likelihood that the construction will ultimately prevail. His conduct is within the bounds of the law and, therefore, permissible if the position taken is supported by the law or is supportable by a good faith argument for an extension, modification, or reversal of the law. However, a lawyer is not justified in asserting a position in litigation that is frivolous.

The constitutional interpretations that speak to the issue are clear, to-wit:

The constitutional requirement of substantial equality and fair process can be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. 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. Anders v. California, 386 U.S. 738, 744, 18 L. Ed. 2d 493, 498, 87 S.Ct. 1396, 1399-1400 (1967), rehearing denied, 388 U.S. 924, 18 L. Ed. 2d 1377, 87 S.Ct. 2094 (1967). See also Caruth v. Geddes, 443 F.Supp. 1295 (1978).

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of the law. Powell v. Alabama, 287 U.S. 45, 68, 69, 77 L. Ed. 158, 170, 53 S.Ct. 55, 64 (1932).

The inquiry addresses a mixed question of law and ethics. The legal authorities addressing the issue are clear and, therefore, prevailing. The attorney appointed by the court to represent an indigent prisoner is ethically obligated to act as an active advocate and not as amicus curiae. His role as advocate requires that he support his client's cause to the best of his ability. If counsel finds the cause 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 that may arguably support the cause. A copy of the brief should be furnished to the indigent prisoner in time to allow him an opportunity to be heard. The court, not counsel, then proceeds to decide whether the cause is frivolous.

This 2nd day of January, 1985.

ETHICS COMMITTEE:

Charles T. Herndon, III

T. Maxfield Bahner

G. Wilson Horde

APPROVED AND ADOPTED BY THE BOARD