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

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.
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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
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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