“Your honor? Who do you want to Stand By? Me?”
So, as reported by Samson Habte of Bloomberg’s ABA/BNA Lawyer’s Manual on Professional Conduct, the New Hampshire Bar Association recently released an ethics advisory opinion on the duties of stand-by counsel in a criminal case. The opinion is HERE.
Full disclosure: I’ve always been troubled by the notion of stand-by counsel. I guess you might say that it give me the Goonies.
For those of you not familiar with the concept of stand-by counsel, criminal defendants sometimes choose represent themselves. It is not unheard of for a court to assign a lawyer to serve as “stand-by counsel” for an otherwise self-represented defendant.
What’s “stand-by” mean? Who knows.
Is stand-by counsel supposed to suggest an obvious objection or question that the self-represented litigant missed? Even before that, is stand-by counsel expected to remind a self-represented defendant to depose a particular witness or to point out flaws in the theory of defense? What if the self-represented defendant starts making statements that no competent defense counsel would ever let be made in front of a jury? Does stand-by counsel jump up and sit down the pseudo-client?
Nobody really knows. That’s why I’ve always been concerned for lawyers assigned to “stand by.” I don’t know what “stand by” means and I don’t know how the Rules of Professional Conduct apply in a “stand by” situation. As a result, I don’t know what guidance to provide to an attorney who finds herself position of being the client’s lawyer, but only kind of.
To that end, the NH opinion is helpful in that it offers suggestions as to how a stand-by lawyer can clarify his role. Still, I don’t think any of you real estate attorneys would feel comfortable “standing by” for a home buyer who chooses to search her own title. Nor do I think any of you family law attorneys would feel comfortable sitting in the front row of the gallery wondering whether you’re supposed to point out to the self-represented litigant that opposing counsel just introduced hearsay.
I get it: we want to make sure that criminal defendants receive fair trials. But, I do not think it’s fair that the knowing decision to waive counsel results in the lawyer who was declined being thrust into the murky world of “stand-by” counsel. For those of you who find yourselves in such a position, I hope the NH opinion provides helpful guidance.