Inquiry is made concerning the ethical obligations of an attorney appointed by the Court to represent an indigent prisoner in a civil case 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 4th day of March, 1985.
Charles T. Herndon, III
T. Maxfield Bahner
G. Wilson Horde
APPROVED AND ADOPTED BY THE BOARD