If stand-by counsel in a capital trial are suddenly told to take over the defense without time to prepare, can they decline to present a defense, and may they create grounds for an ineffective-assistance claim?

Plain-English summary

The opinion arose from a capital murder trial in which the defendant represented himself, with two lawyers appointed as stand-by counsel who had repeatedly objected that they would need adequate time to prepare if elevated to trial counsel. The defendant proceeded pro se through the guilt phase and was convicted. During the sentencing phase, after the State rested and the defendant had called several witnesses, he asked stand-by counsel to take over. They told the court they were unprepared, having not interviewed the subpoenaed witnesses or discussed the substance of the case, and that motions and research were needed; they moved for a three-week continuance and a new sentencing hearing, both denied, then moved to withdraw, also denied, and sought writs from the North Carolina Supreme Court, which had not ruled when the trial court ordered them to proceed.

The opinion concluded that it is not unethical for the lawyers to decline to present a defense, provided they made every effort to be adequately prepared but reasonably and in good faith concluded they could not present a competent defense. Rule 6(a)(2) bars handling a matter without adequate preparation under the circumstances, and the Comment to Rule 6 ties the required preparation to what is at stake; the sentencing phase of a capital trial requires the utmost preparation. Stand-by counsel have a duty to competently represent the defendant when instructed to take over, and a lawyer who reasonably and in good faith concludes he has not had an adequate opportunity to prepare should at a minimum advise the court and request a continuance, and may move to withdraw (Rule 2.8(b)(2)); if ordered to proceed and not allowed to withdraw, he should exhaust reasonably available legal procedures to seek more time. Having done so, if he still reasonably and in good faith believes his lack of preparation makes him incompetent to present a defense, it is not unethical to decline to present one, so long as he is not irresponsibly abandoning the client but genuinely believes that even heroic preparation efforts could not produce a competent defense in the time available. The opinion added that it would also not be unethical to present a defense after the continuance was denied if the court found counsel adequately prepared, and that a lawyer may not refuse to present a defense, or present an inadequate one, for the purpose of creating grounds for a post-trial ineffective-assistance motion, because that would intentionally prejudice the client and be prejudicial to the administration of justice (Rule 7.1(a)(3) and Rule 1.2(d)).

Currency note

This opinion was issued in 1995, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can stand-by counsel forced to take over a capital case unprepared decline to present a defense?

A: Yes, after exhausting remedies. The opinion concluded that if counsel sought a continuance, moved to withdraw, exhausted reasonably available procedures, and still reasonably and in good faith concluded they could not present a competent defense, declining to present one is not unethical.

Q: What steps must counsel take before declining?

A: Seek time and relief. The opinion required counsel to advise the court, request a continuance, possibly move to withdraw (Rule 2.8(b)(2)), and exhaust reasonably available legal procedures to obtain more preparation time.

Q: Is it unethical to present a defense after the continuance is denied?

A: No. The opinion concluded that if the court found counsel adequately prepared and denied the continuance, it is not unethical to proceed with the representation on that basis.

Q: Can counsel deliberately give an inadequate defense to set up an ineffective-assistance claim?

A: No. The opinion concluded a lawyer may not present an inadequate defense for the primary purpose of creating error and securing a new trial, because that would intentionally prejudice the client and the administration of justice.

Background and rules framework

The opinion applied North Carolina's then-current Rule 6(a)(2), the adequate-preparation component of competence (corresponding to Model Rule 1.1), and Rule 2.8(b)(2) on permissive withdrawal (corresponding to Model Rule 1.16). It limited counsel's options by Rule 7.1(a)(3), barring intentional prejudice to the client, and Rule 1.2(d), barring conduct prejudicial to the administration of justice.

Citations and references

Rules of Professional Conduct:

• MR 1.1 (competence; adequate preparation)
• MR 1.16 (declining or terminating representation; withdrawal)
• North Carolina Rule 6(a)(2), Rule 2.8(b)(2), Rule 7.1(a)(3), Rule 1.2(d)

See also

• NC Ethics Op. RPC 199: ethical responsibilities of a court-appointed lawyer
• NC Ethics Op. RPC 221: receipt of evidence of a crime

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-198/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry #1:

Defendant chose to defend himself in the trial of a capital murder charge. Several months prior to the trial, the court appointed Attorney A and Attorney B as stand-by defense counsel. The stand-by counsel were present at all pretrial hearings. At the time of the appointment and at other points during the trial, Attorney A and Attorney B were advised that if Defendant decided at any point that he did not want to proceedpro se, they would take over his defense. When Attorney A and Attorney B were advised that they could be elevated from stand-by counsel to trial counsel for Defendant at any time, they objected unless they would be given adequate time to prepare.

At numerous hearings prior to the trial, Defendant was offered the opportunity to have stand-by counsel take over his defense. Defendant refused each time and proceeded to represent himself throughout the "guilt/innocence phase" of the trial. A guilty verdict was returned by the jury. After the State completed the presentation of its evidence during the sentencing phase and after Defendant had called several witnesses, Defendant advised the court that he wanted stand-by counsel to handle the presentation of the remainder of his case. The court advised Attorney A and Attorney B to proceed with the presentation of Defendant's evidence in the sentencing phase of the trial. Attorney B advised the court that he and Attorney A were unprepared to proceed at that time because, in their role as stand-by counsel, they had not interviewed the witnesses subpoenaed by Defendant nor had they had any discussions with Defendant regarding the substantive aspects of his case. Attorney B also advised the court that there were other aspects of the case, including appropriate motions which might be made during the sentencing phase, which required investigation and research. Attorney A and Attorney B filed a motion for a three-week continuance to prepare the presentation of Defendant's case in the sentencing hearing, and they also filed a motion for a new sentencing hearing.

The court denied both motions. Attorney A and Attorney B made motions to withdraw on the grounds that they could not effectively represent Defendant without preparation. The motions to withdraw were denied. Attorney A and Attorney B filed petitions for writs of supersedeas and mandamus and an application for stay of proceedings with the North Carolina Supreme Court but the Supreme Court had not ruled at the time the trial court ordered Attorney A and Attorney B to proceed with the defense. Is it unethical for Attorney A and Attorney B to fail to present a defense in the sentencing hearing?

Opinion #1:

No, provided Attorney A and Attorney B made every effort to be adequately prepared, but reasonably and in good faith, concluded that under the circumstances they could not present a competent defense.

Rule 6(a)(2) of the Rules of Professional Conduct provides that a lawyer shall not handle a legal matter "without adequate preparation under the circumstances." The comment to Rule 6 notes "[t]he required attention and preparation [for the competent handling of a particular matter] are determined in part by what is at stake; major litigation and complex transactions ordinarily require more elaborate treatment than matters of lesser consequence." Certainly the sentencing phase of a capital murder trial requires the utmost preparation. A lawyer who is serving as stand-by counsel to a criminal defendant has a duty competently to represent the defendant at the juncture in the trial at which he is instructed to take over the defense. If that lawyer reasonably and in good faith concludes that he has not had an adequate opportunity to prepare under the circumstances, at a minimum he should advise the court and request a continuance in order to have the opportunity to prepare. Additionally, he may make a motion to withdraw from the representation. See Rule 2.8(b)(2). If the court determines that the lawyer should proceed without a continuance and does not allow the lawyer to withdraw, the lawyer should exhaust all reasonably available legal procedures by which he might seek additional time to prepare. However, having exhausted such avenues, if the lawyer continues, reasonably and in good faith, to believe that his lack of preparation makes him incompetent to present a defense, it is not unethical for the lawyer to decide not to present a defense. By declining to present a defense the lawyer must not be irresponsibly abandoning his client but must believe that under the circumstances and given the limited time available, even if he made heroic efforts to prepare himself, he would be unable to present a competent defense.

Inquiry #2:

After the motion for a continuance was denied, would it have been unethical for Attorney A and Attorney B to present a defense?

Opinion #2:

No. If after being put on notice that a lawyer believes himself to be incompetent to proceed without additional time to prepare, the court determines that the lawyer is adequately prepared and denies a motion to continue, it is not unethical for the lawyer to proceed with the representation on this basis.

Inquiry #3:

May a lawyer refuse to present a defense for a criminal defendant for the purpose of creating grounds for a post-trial ineffective assistance of counsel motion?

Opinion #3:

No. A lawyer may not pursue a course of conduct that would intentionally prejudice or damage his client nor may he engage in conduct that is prejudicial to the administration of justice. Rule 7.1(a)(3) and Rule 1.2(d). A lawyer may not intentionally present an inadequate or ineffective defense of a criminal defendant for the primary purpose of creating error and assuring his client a new trial.