Can a court-appointed criminal defense lawyer decide on his own to stop post-conviction proceedings he thinks are against the client's interest, or does the client decide?

Plain-English summary

A lawyer appointed to represent a criminal defendant in post-conviction habeas corpus proceedings asked the Committee about his duties. After investigating, the lawyer had concluded that the petitioner's trial attorney did no investigation of the homicide and advised a guilty plea based only on conversations with the prosecuting attorney. The lawyer believed it likely the Supreme Court of Appeals would let the client withdraw the guilty plea, but feared that if the plea were set aside the client (then serving ten years to life with a recommendation of mercy) could be convicted of first degree murder without a recommendation of mercy, requiring a life sentence. The lawyer's questions reduced to two: did he have the right to elect whether to proceed, and could he withdraw.

On the first question, the Committee answered that the lawyer did not have the right to elect whether to continue with the habeas corpus proceedings. Except for decisions that do not affect the merits or substantially prejudice the client, the authority to decide is exclusively the client's, and decisions made within the framework of the law bind the lawyer. The opinion stated that a defense lawyer must advise the client fully on the desirability of a plea and the prospects of success on appeal, but it is for the client to decide what plea to enter and whether to appeal, and the lawyer is bound by the client's instructions, citing EC 7-7 and EC 7-8. The Committee pointed to Anders v. California, 386 U.S. 738 (1967), and Rhodes v. Leverette, 239 S.E.2d 136 (W. Va. 1977), for counsel's duty to act as an active advocate.

On the second question, the Committee applied DR 2-110, which regulates withdrawal of counsel. It quoted DR 2-110(A)(1) and (2) (no withdrawal without a tribunal's permission where required, and no withdrawal until reasonable steps are taken to avoid foreseeable prejudice) and DR 2-110(C), which lists the permissive grounds for seeking to withdraw. The Committee concluded that if the client, after being fully advised of the possible consequences, insists that the lawyer continue with proceedings to set aside the guilty plea, the lawyer must do so, and may withdraw only if he comes within DR 2-110(C)(1)(a) through (d).

The opinion added that in applying to the court for permission to withdraw, the lawyer should not disclose the facts he had discovered about the client's case during the course of the representation.

Currency note

This opinion was issued in 1979, before West Virginia replaced its Code of Professional Responsibility (the DR and EC provisions cited here) with the Rules of Professional Conduct, effective January 1, 1989, and before later rule revisions, including the comprehensive 2015 amendments. 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: Could the appointed lawyer decide on his own to stop the post-conviction case?

A: No. The opinion concluded that the lawyer did not have the right to elect whether to continue; the decision whether to pursue setting aside the plea belonged to the client, citing EC 7-7 and EC 7-8.

Q: What if the client insisted on going forward despite the risk of a worse outcome?

A: The opinion stated that if the client insists, after being fully advised of the possible consequences, that the lawyer continue with proceedings to set aside the guilty plea, the lawyer must do so.

Q: When could the lawyer withdraw?

A: Only if he came within DR 2-110(C)(1)(a) through (d), and subject to DR 2-110(A)'s requirements of any needed tribunal permission and reasonable steps to avoid foreseeable prejudice to the client.

Q: Could the lawyer explain to the court what he had learned about the client's case to justify withdrawing?

A: The opinion stated that in applying for permission to withdraw, the lawyer should not disclose the facts he had discovered concerning the client's case during the representation.

Background and rules framework

The opinion applied the West Virginia Code of Professional Responsibility. EC 7-7 and EC 7-8 addressed the allocation of decision-making between lawyer and client, reserving to the client decisions that affect the merits of the case. DR 2-110 governed withdrawal: subsection (A) set baseline conditions (tribunal permission where required and steps to avoid prejudice), subsection (B) listed mandatory-withdrawal situations, and subsection (C) listed the grounds on which a lawyer may permissively seek to withdraw. The Committee read these together to hold that the client controls whether the proceeding goes forward and that the lawyer's exit is confined to the enumerated withdrawal grounds, without disclosing client confidences.

Citations and references

Rules of Professional Conduct (Code of Professional Responsibility, as cited):

• DR 2-110(A)(1) (no withdrawal without required tribunal permission)
• DR 2-110(A)(2) (reasonable steps to avoid foreseeable prejudice before withdrawing)
• DR 2-110(B) (referenced; mandatory withdrawal)
• DR 2-110(C)(1)(a)-(d) (permissive grounds for seeking to withdraw)
• EC 7-7, EC 7-8 (decisions reserved to the client)

Cases:

• Anders v. California, 386 U.S. 738, 18 L. Ed. 493, 87 S. Ct. 1396 (1967) (counsel must act as an active advocate, not amicus curiae)
• Rhodes v. Leverette, 239 S.E.2d 136 (W. Va. 1977) (quoting Anders with approval)

See also

• WVSB Ethics Op. 2003-01: Private employment of appointed counsel
• WVSB Ethics Op. 83-5: Compensation of court-appointed counsel for an indigent

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7ea57ce5d7dc613830.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

UNPUBLISHED LEGAL ETHICS INQUIRY 79-16

(October 11, 1979)

Reference is made to your letter of September 11, 1979, asking for advice from this Committee concerning your duties with respect to a criminal defendant whom you have been appointed to represent in post-conviction habeas corpus proceedings. You state in your letter that after considerable investigation and review of the applicable law you have concluded that the petitioner's trial attorney conducted no investigation of the facts surrounding the homicide with which your client was charged and advised him to plead guilty to the homicide on the basis of conversations with the prosecuting attorney. You further state that although you are of the opinion that the trial court will not set aside the guilty plea, it is likely, under its recent decisions, that the Supreme Court of Appeals will permit your client to withdraw his plea of guilty. You feel, however, that if the guilty plea is set aside your client would then have to stand trial on a first degree murder charge. Your client is now serving a sentence of ten years to life pursuant to a first degree murder conviction with a recommendation of mercy. You fear that if your client stands trial again there is a likelihood that he will be convicted of first degree murder without a recommendation of mercy which would require a life sentence.

Although you have asked four questions in your letter, they may be summarized as follows:

(1) Do you have the right to elect whether or not to proceed in the habeas corpus proceedings?

(2) May you withdraw from the case?

You do not have the right to elect whether to continue with the habeas corpus proceedings. In certain areas of legal representation not affecting the merits of the cause or substantially prejudicing the rights of a client, a lawyer is entitled to make decisions on his own. Except in such situations the authority to make decisions is exclusively that of the client and, if made within the framework of the law, such decisions are binding on his lawyer. A defense lawyer in a criminal case has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable and as to the prospects of success on appeal, but it is for the client to decide what plea should be entered and whether an appeal should be taken. A lawyer is bound by his client's instructions. See Code of Professional Responsibility, EC 7-7 and 7-8.

We call your attention to the case of Anders v. California, 386 U.S. 738, 18 L. Ed. 493, 87 S. Ct. 1396 (1967), wherein Mr. Justice Clark wrote:

The constitutional requirement of substantial equality and fair process can only 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.

See also Rhodes v. Leverette, 239 S.E.2d 136 (W. Va. 1977), in which Mr. Justice Miller quotes with approval from Anders.

DR 2-110 of the Code of Professional Responsibility regulates withdrawal of counsel. DR 2-110(A)(1) and (2) provide:

(1) If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission.

(2) In any event, a lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.

DR 2-110(C) provides, in pertinent part:

If DR 2-110(B) is not applicable, a lawyer may not request permission to withdraw in matters pending before a tribunal, and may not withdraw in other matters, unless such request or such withdrawal is because:

(1) His client:

(a) Insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law.

(b) Personally seeks to pursue an illegal course of conduct.

(c) Insists that the lawyer pursue a course of conduct that is illegal or that is prohibited under the Disciplinary Rules.

(d) By other conduct renders it unreasonably difficult for the lawyer to carry out his employment effectively.

From the foregoing we conclude that if your client insists, after having been fully advised as to the possible consequences, that you continue with proceedings to have his guilty plea set aside, you must do so. You may withdraw from the case only if you come within the provisions of DR 2-110(C)(1)(a) through (d).

In applying to the court for permission to withdraw you should not disclose the facts which you have discovered concerning your client's case during the course of your representation.