The Role of Standby Counsel
Traditionally, the role of standby counsel has been discussed in the context of appointment, over the objection of the accused. The discussion has focused on the extent to which standby counsel may act without impermissibly infringing on an accused's constitutional right of self-representation.
McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.2d.2d 122 (1984)In McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.2d.2d 122 (1984), the Court held that standby counsel may engage in unsolicited participation in the defense, so lomg as counsel does not interfere with significant tactical decisions, control the questioning of witnesses, speak instead of the defendant on material matters, or give the impression to the jury that the defendant is not representing himsel
American Bar Association Standard 4-3.9 Obligations of Hybrid and Standby CounselThe American Bar Association has defined the role of standby counsel, as follows: (a) Defense counsel whose duty is to actively assist a pro se accused should permit the accused: (a) to make the final decisions on all matters, including strategic and tactical matters relatinq to the conduct of the case. (b) Defense counsel whose duty is to assist a pro se accused only when the accused requests assistance may bring to the attention of the accused matters beneficial to him or her, but should not actively participate in the conduct of the defense unless requested by the accused or insofar as directed to do so by the court.
Counsel acts as an advisor to the accused when requested, but does not in any respect act as an errand runner.the question involves the nature and extent of the demands a pro se defendant may make of standby counsel in prOViding the tools necessary to prepare a meaningful pro se defense. Here, the purpose of standby counsel is dual in nature. First, counsel must perform the purpose for which he or she was appointed by the court, namely to serve the traditional role of providing adVice when solicited by the defendant, and being available to resume representation should the defendant request it. In this role, standby counsel must be judicious in working within delineated boundaries so as not to infringe on the defendant's right of self-representation. But counsel must also provide assistance to the accused, if requested, to aid in the preparation of a pro se defense. Silva claims that this assistance includes support services, including administrative duties and research assistance. But both standby counsel appointed in this case were concerned that to submit to such demands would essentially reduce the role of standby counsel to that of a paralegal assistant, and expose counsel to unreasonable, irrelevant, and time consuming errands and research requests. We are mindful of counsel's concerns and find persuasive the Ninth Circuit's admonishment that a court, when ordering resources for the accused, may take into consideration such issues as "security COr:1cerns or 'avoidance of abuse by opportunistic or vacillating defendants.' "f!iZ.Q FN70. Taylor v. List, 880 F.2d 1040,1047 (9th Cir.19891.