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Ethically Speaking: The ethical obligations of ‘standby counsel’

John E. Bernacki

We’ve all seen it happen. After a disagreement with his or her attorney, a party in a criminal or civil matter will choose to proceed pro se in court. When this happens, judges may appoint an attorney who happens to be sitting on the sidelines as “standby counsel.” Oftentimes, the lawyer’s responsibilities are unclear and there may be some confusion regarding the required scope of representation in the matter. As a result, ethical issues can arise as to the standby attorney’s obligations.

Fortunately, the New York State Bar Association’s Committee on Professional Ethics recently issued an opinion on this very issue. Specifically, in Opinion 949 (12/17/12), the committee reviewed the ethical obligations of standby counsel in depth.

The committee first examined the concept of standby counsel, noting that, depending on the circumstances, standby counsel’s role can vary greatly. The committee then turned to the ABA Standards for Criminal Justice: Special Functions of the Trial Judge, Standard 6-3.7[c] (1999), which describes two different functions for standby counsel: “When standby counsel is appointed to provide assistance to the pro se accused only when requested, the trial judge should ensure that counsel not actively participate in the conduct of the defense unless requested by the accused or directed to do so by the court.  When standby counsel is appointed to actively assist the pro se accused, the trial judge should ensure that the accused is permitted to make the final decisions on all matters, including strategic and tactical matters relating to the conduct of the case.”

Next, the committee turned to the relevant New York standard, which provides that a defendant who chooses to proceed pro se is not entitled to assistance from standby counsel, but if a court elects to appoint the same, the court is given broad discretion in setting the parameters of the standby counsel’s role. Importantly, the committee explained that it is the judge’s responsibility to inform both the standby counsel and the pro se party of their respective roles and duties.

The committee then addressed the ethical issues presented when attorneys take on the role of standby counsel by first examining the different roles of standby counsel: 1) the “inactive” role, where the pro se party is the equivalent of a “prospective client;” 2) the “middle” role, where the pro se party requests assistance, thus forming an attorney/client relationship such that the attorney must handle specific, delineated responsibilities in the legal matter; and 3) the “full representation” role, which is nevertheless still limited in scope pursuant to the court’s instructions.

After reviewing the different potential roles of standby counsel, the committee then addressed the ethical obligations involved when fulfilling this role: “The ethical responsibilities of standby counsel vary depending on the degree to which standby counsel assumes representational obligations: when standby counsel remains on the sidelines, the pro se party should be treated in the same manner as a prospective client under Rule 1.18; when the pro se party invites standby counsel’s participation on a limited basis, standby counsel can limit the scope of representation pursuant to Rule 1.2(c); and if a pro se party makes lengthy demands on standby counsel that are irrelevant to the case or relate to matters for which counsel has not assumed responsibility, standby counsel should reiterate the scope of his representation and explain which requests and demands are beyond that scope.”

Because the role of standby counsel can sometimes be a confusing one, the committee’s clarification regarding the duties and obligations of everyone involved offered useful and much-needed guidance. So, the next time you’re asked to act as “standby counsel,” at least you’ll know where you stand.

The Hon. John E. Bernacki is a Pittsford Town Court Justice. His law firm, John E. Bernacki Jr. PC, is located in Pittsford. He can be reached at www.johnbernackilaw.com.

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