Ethics Committee Advisory Opinion #2015-16/09

By the NHBA Ethics Committee


What are the ethical responsibilities of an attorney appointed as stand-by counsel in a criminal matter?


“Standby counsel” is not an advocate or “counsel” in any normal sense. If stand-by counsel acts as an advocate or in any way undermines the pro se defendant’s control of that defendant’s own case, the defendant’s right to self-representation may be violated.
Except when the defendant consents, standby counsel is not in control of the case. Standby counsel must instead serve as a passive source of information, answering questions of law from the defendant when he or she chooses to ask such questions.
Serving as stand-by counsel is not unethical. However, stand-by counsel would be wise to seek instruction and guidance from the trial court on a case-by-case basis, define the responsibilities stand-by counsel must undertake, and outline for the defendant the consequences of self-representation.

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This opinion was submitted for publication to the NHBA Board of Governors at its March 3, 2016 meeting.