Duty of Defense Counsel Appointed after Defendant Files Pro Se Motion for Appropriate Relief
Adopted: July 22, 2016
Opinion rules that, when advancing claims on behalf of a criminal defendant who filed a pro se Motion for Appropriate Relief, subsequently appointed defense counsel must correct erroneous claims and statements of law or facts set out in the previous pro se filing.
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).