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Ethical Guidance for Standby Counsel in Criminal Cases: A Far Cry from Counsel?

NCJ Number
American Criminal Law Review Volume: 50 Issue: 1 Dated: Winter 2013 Pages: 211-245
Anne Bowen Poulin
Date Published
35 pages
This article presents a framework for which attorneys can operate as standby counsel.
Current laws allow for accused defendants to act as counsel on their own behalf. When this situation arises, trial courts may assign an attorney to act as standby counsel to help the defendant avoid an unfair trial. This assignment often places the attorney in a situation in which the attorney is not governed by the rules governing the attorney-client relationship. This article presents a framework that will allow attorneys acting as standby counsel to do so in a more forthright and ethical manner. The first section of the article examines the constitutional law governing a defendant's right to self-representation at trial and the role that standby counsel plays in these situations. The U.S. Supreme Court has found that a defendant's has the right to self-representation under the sixth amendment. At the same, the Court has found that while trial courts can appoint standby counsel without violating a defendant's right to self-representation, defendants who choose to self-represent cannot request standby counsel from the courts. This situation often places standby counsel in ethical quandary - providing assistance to the defendant without violating their right to proceed with self-representation. The next section of the article provides an ethical framework for attorneys acting as standby counsel to follow. The first step is to determine whether a lawyer-client relationship exists between the standby counsel and the defendant who is representing themselves. The next step is to recognize that ethical rules need to be applied even in the absence of an ongoing client-lawyer relationship. If a client-lawyer relationship exists, the following areas need to be considered: confidentiality and the attorney-client privilege; avoidance of conflict of interest; duty of loyalty; standby counsel as counselor; standby counsel as a source of information; standby counsel as advocate; and a pro se defendant with diminished capacity.