McCoy v. Court of Appeals of Wisconsin, District 1

Justice Stevens

delivered the opinion of the Court.

Like Anders v. California, 386 U. S. 738 (1967), this case concerns the scope of court-appointed appellate counsel’s duty to an indigent client after counsel has conscientiously determined that the indigent’s appeal is wholly frivolous. In Anders, we held that counsel could not withdraw by simply advising the court of his or her conclusion, but must include with the request to withdraw “a brief referring to anything in the record that might arguably support the appeal.” Id., at 744. The Wisconsin Supreme Court has adopted a Rule that requires such a brief also to include “a discussion of why the issue lacks merit.”1 Appellant challenged the constitution *431 ality of the Rule in the Wisconsin Supreme Court. Over the dissent of three of its justices, the court upheld the Rule, rejecting appellant’s contentions that the Rule is inconsistent with Anders and that it forces counsel to violate his or her client’s Sixth Amendment rights. Wisconsin ex rel. McCoy v. Wisconsin Court of Appeals, 137 Wis. 2d 90, 403 N. W. 2d 449 (1987). We noted probable jurisdiction, 484 U. S. 813 (1987), and now affirm.

I

Appellant is indigent. A Wisconsin trial judge found him guilty of abduction and sexual assault and sentenced him to prison for 12 years. He has filed an appeal from that conviction and an attorney has been appointed to represent him. After studying the case, the attorney advised him that further appellate proceedings would be completely useless and that he had three options: He could voluntarily dismiss the appeal; he could go forward without a lawyer; or he could authorize the attorney to file a brief that would present the strongest arguments the lawyer could make in support of the *432 appeal but would also advise the court of the lawyer’s conclusion that the appeal is frivolous. Appellant selected the third option.

Appellant’s counsel then prepared a brief that can fairly be characterized as schizophrenic. In his role as an advocate for appellant, counsel stated the facts, advanced four arguments for reversal, and prayed that the conviction be set aside. In his role as an officer of the court, counsel stated that further appellate proceedings on behalf of his client “would be frivolous and without any arguable merit,” App. 14, and prayed that he be permitted to withdraw, id., at 27. Thus, in the same document, the lawyer purported to maintain that there were arguments warranting a reversal and also that those arguments were wholly without merit. The brief did not contain an explanation of the reasons for counsel’s conclusion. Instead, counsel explained why he believed that it would be both unethical and contrary to Anders to discuss the reasons why the appeal lacked merit.2 Because the brief did not comply with the discussion requirement in Rule 809.32(1), the court ordered it stricken and directed counsel to submit a conforming brief within 15 days. App. 30.

Appellant’s counsel did not comply with that order. Instead, after unsuccessfully attempting to obtain a ruling on the constitutionality of the Rule in the intermediate appellate court, he filed an original action in the Wisconsin Supreme Court seeking to have the discussion requirement in Rule *433 809.32(1) declared unconstitutional.3 The Supreme Court agreed with portions of appellant’s argument, but rejected his ultimate conclusion. The court reaffirmed its acceptance of the principle that appointed counsel have the same obligations as paid counsel to provide their clients with adequate representation,4 and it agreed that the Anders opinion had not sanctioned a discussion requirement.5 Moreover, the court also agreed that it is ultimately the responsibility of the court — and not of counsel — to decide whether an appeal is wholly frivolous. It explained, however, that the discussion requirement in the Wisconsin Rule assists the court in making that determination:

“When the court has before it a reasoned summary of the law militating against further appellate proceedings, it can be assured that the attorney has made an inquiry into the relative merits of the appeal and that the attorney’s withdrawal request is valid and grounded in fact and in the law.” 137 Wis. 2d, at 101, 403 N. W. 2d, at 454.

The court noted that because its procedures for handling frivolous appeals were far removed from the simple statement of counsel’s conclusion that this Court condemned in Anders, *434 they did not raise the “quality and equality of attorney representation” concerns that underlay our decision in Anders. 137 Wis. 2d, at 101-102, 403 N. W. 2d, at 454. The court also pointed out that the Rule does not require an attorney to argue against his or her client; rather it merely requires the attorney to fulfill his or her duty to the courts.6 Accordingly, the court upheld the Rule.

The dissenting justices expressed the view that the discussion requirement was not necessary7 and that it improperly required defense counsel to assume the role of either an ami-cus curiae, or even an adversary, instead of acting exclusively as an advocate for the client.

In this Court appellant makes two basic attacks on the Rule. He argues that it discriminates against the indigent appellant and that it violates his right to effective representation by an advocate. Both arguments rest largely on the assumption that retained counsel will seldom, if ever, advise an appellate court that he or she has concluded that a client’s appeal is meritless, or provide the court with a discussion of the reasons supporting such a conclusion. In determining whether Wisconsin’s Rule requiring appointed counsel to provide an appellate court with such advice is constitutional, it is appropriate to begin by restating certain propositions estab *435 lished by our previous decisions concerning the right to counsel and the obligations of both paid and appointed counsel.

r-H W

A State s enforcement of its criminal laws must comply with the principles of substantial equality and fair procedure that are embodied in the Fourteenth Amendment. The Sixth Amendment’s requirement that “the accused shall enjoy the right to have the Assistance of Counsel for his defense” is therefore binding on the States. Gideon v. Wainwright, 372 U. S. 335 (1963). As we explained in Gideon, “in our adversary system of criminal justice, any person hailed into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Id., at 344. It is therefore settled law that an indigent defendant has the same right to effective representation by an active advocate as a defendant who can afford to retain counsel of his or her choice. The “guiding hand of counsel,” see Powell v. Alabama, 287 U. S. 45, 68-69 (1932), is essential for the evaluation of the prosecution’s case, the determination of trial strategy, the possible negotiation of a plea bargain and, if the case goes to trial, making sure that the prosecution can prove the State’s case with evidence that was lawfully obtained and may lawfully be considered by the trier of fact.

At the trial level, defense counsel’s view of the merits of his or her client’s case never gives rise to a duty to withdraw. That a defense lawyer may be convinced before trial that any defense is wholly frivolous does not qualify his or her duty to the client or to the court. Ethical considerations and rules of court prevent counsel from making dilatory motions, adducing inadmissible or perjured evidence, or advancing frivolous or improper arguments, but those constraints do not qualify the lawyer’s obligation to maintain that the stigma of guilt may not attach to the client until the presumption of innocence has been overcome by proof beyond a reasonable doubt.

*436 After a judgment of conviction has been entered, however, the defendant is no longer protected by the presumption of innocence. If a convicted defendant elects to appeal, he retains the Sixth Amendment right to representation by competent counsel, but he must assume the burden of convincing an appellate tribunal that reversible error occurred at trial. Although trial counsel may remain silent and force the prosecutor to prove every element of the offense, counsel for an appellant cannot serve the client’s interest without asserting specific grounds for reversal. In so doing, however, the lawyer may not ignore his or her professional obligations. Neither paid nor appointed counsel may deliberately mislead the court with respect to either the facts or the law, or consume the time and the energies of the court or the opposing party by advancing frivolous arguments. An attorney, whether appointed or paid, is therefore under an ethical obligation to refuse to prosecute a frivolous appeal.8

“A lawyer, after all, has no duty, indeed no right, to pester a court with frivolous arguments, which is to say arguments that cannot conceivably persuade the court, so if he believes in good faith that there are no other arguments that he can make on his client’s behalf he is honor-bound to so advise the court and seek leave to withdraw as counsel.” United States v. Edwards, 111 F. 2d 364, 365 (CA7 1985).

*437 When retained counsel concludes that an appeal would be frivolous, he or she has a duty to advise the client that it would be a waste of money to prosecute the appeal and that it would be unethical for the lawyer to go forward with it. When appointed counsel conies to the same conclusion, the same duty to withdraw arises. Appointed counsel, however, is presented with a dilemma because withdrawal is not possible without leave of court, and advising the court of counsel’s opinion that the appeal is frivolous would appear to conflict with the advocate’s duty to the client. It is well settled, however, that this dilemma must be resolved by informing the court of counsel’s conclusion. As we stated three decades ago:

“If counsel is convinced, after conscientious investigation, that the appeal is frivolous, of course, he may ask to withdraw on that account. If the court is satisfied that counsel has diligently investigated the possible grounds of appeal, and agrees with counsel’s evaluation of the case, then leave to withdraw may be allowed and leave to appeal may be denied.” Ellis v. United States, 356 U. S. 674, 675 (1958).

We reaffirmed this basic proposition in Anders.9 Moreover, the fact that an appointed appellate lawyer may find it necessary to file a motion to withdraw because he or she has concluded that an appeal is frivolous does not indicate that the indigent defendant has received less effective representation than the affluent. We categorically rejected that suggestion in Polk County v. Dodson, 454 U. S. 312 (1981). As Justice Powell explained in his opinion for the Court:

“Dodson’s argument assumes that a private lawyer would have borne no professional obligation to refuse to *438 prosecute a frivolous appeal. This is error. In claiming that a public defender is peculiarly subject to divided loyalties, Dodson confuses a lawyer’s ethical obligations to the judicial system with an allegiance to the adversary interests of the State in a criminal prosecution. Although a defense attorney has a duty to advance all col-orable claims and defenses, the canons of professional ethics impose limits on permissible advocacy. It is the obligation of any lawyer — whether privately retained or publicly appointed — not to clog the courts with frivolous motions or appeals. Dodson has no legitimate complaint that his lawyer refused to do so.” Id., at 323 (footnote omitted).

In Anders we squarely held that the principle of substantial equality is not compromised when appointed counsel files a “no merit” brief even though such briefs are seldom, if ever, filed by retained counsel. As we stated in Douglas v. California, 372 U. S. 353, 357 (1963), “[ajbsolute equality is not required.”

The principle of substantial equality does, however, require that appointed counsel make the same diligent and thorough evaluation of the case as a retained lawyer before concluding that an appeal is frivolous. Every advocate has essentially the same professional responsibility whether he or she accepted a retainer from a paying client or an appointment from a court. The appellate lawyer must master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal. In preparing and evaluating the case, and in advising the client as to the prospects for success, counsel must consistently serve the client’s interest to the best of his or her ability. Only after such an evaluation has led counsel to the conclusion that the appeal is “wholly frivolous”10 is counsel *439 justified in making a motion to withdraw. This is the central teaching of Anders.11

In Anders we held that a motion to withdraw must be accompanied by “a brief referring to anything in the record that might arguably support the appeal.” 386 U. S., at 744. That requirement was designed to provide the appellate courts with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability. The Anders requirement assures that indigent defendants have the benefit of what wealthy defendants are able to acquire by purchase — a diligent and thorough review of the record and an identification of any arguable issues revealed by that review.12 Thus, the Anders brief assists the court in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.13

*440 I — » h-J HH

The question whether the Wisconsin Rule is consistent with our holding in Anders must be answered in light of the Wisconsin Supreme Court’s explanation of the Rule’s requirements:

“We interpret the discussion rule to require a statement of reasons why the appeal lacks merit which might include, for example, a brief summary of any case or statutory authority which appears to support the attorney’s conclusions, or a synopsis of those facts in the record which might compel reaching that same result. We do not contemplate the discussion rule to require an attorney to engage in a protracted argument in favor of the conclusion reached; rather, we view the rule as an attempt to provide the court with ‘notice’ that there are facts on record or cases or statutes on point which would seem to compel a conclusion of no merit.” 137 Wis. 2d, at 100, 403 N. W. 2d, at 454.

As so construed, the Rule appears to require that the attorney cite the principal cases and statutes and the facts in the record that support the conclusion that the appeal is merit-less. The Rule also requires a brief statement of why these citations lead the attorney to believe the appeal lacks merit. The former requirement is, as far as the Federal Constitution is concerned, entirely unobjectionable. Attorneys are obligated to act with candor in presenting claims for judicial resolution. The rules of ethics already prescribe circumstances in which an attorney must disclose facts and law contrary *441 to his or her client’s interests.14 That the Wisconsin Rule requires counsel also to do so when seeking to withdraw on the ground that the appeal is frivolous does not deny the client effective assistance of counsel any more than the rules of ethics do.

The aspect of the Rule that has provoked the concern of counsel for petitioner and other members of the defense bar is that which calls for the attorney to reveal the basis for his or her judgment.15 Although neither appellant nor amici supporting appellant debate the propriety of allowing defense counsel to satisfy his or her ethical obligations to the court by asserting his or her belief that the appeal is frivolous and seeking to withdraw, they do contend that requiring the attorney to assert the basis for this conclusion violates the client’s Sixth and Fourteenth Amendment rights and is contrary to Anders. We disagree.

The Wisconsin Rule is fully consistent with the objectives that are served by requiring that a motion to withdraw be ac *442 companied by a brief referring to all claims that might arguably support the appeal. Unlike the typical advocate’s brief in a criminal appeal, which has as its sole purpose the persuasion of the court to grant relief to the defendant, the Anders brief is designed to assure the court that the indigent defendant’s constitutional rights have not been violated. To satisfy federal constitutional concerns, an appellate court faces two interrelated tasks as it rules on counsel’s motion to withdraw. First, it must satisfy itself that the attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support the client’s appeal. Second, it must determine whether counsel has correctly concluded that the appeal is frivolous. Because the mere statement of such a conclusion by counsel in Anders was insufficient to allow the court to make the required determinations, we held that the attorney was required to submit for the court’s consideration references to anything in the record that might arguably support the appeal. Wisconsin’s Rule merely requires that the attorney go one step further. Instead of relying on an unexplained assumption that the attorney has discovered law or facts that completely refute the arguments identified in the brief, the Wisconsin court requires additional evidence of counsel’s diligence. This requirement furthers the same interests that are served by the minimum requirements of Anders. Because counsel may discover previously unrecognized aspects of the law in the process of preparing a written explanation for his or her conclusion, the discussion requirement provides an additional safeguard against mistaken conclusions by counsel that the strongest arguments he or she can find are frivolous. Just like the references to favorable aspects of the record required by Anders, the discussion requirement may forestall some motions to withdraw and will assist the court in passing on the soundness of the lawyer’s conclusion that the appeal is frivolous.16

*443 The Rule does not place counsel in the role of amicus curiae. In Anders petitioner argued that California’s rule allowing counsel to withdraw on the basis of a conclusory statement that the appeal was meritless posed the danger that some counsel might seek to withdraw not because they thought the appeal frivolous but because, seeing themselves as friends of the court, they thought after weighing the probability of success against the time burdens on the court and the attorney if full arguments were presented that it would be best not to pursue the appeal. Brief for Petitioner in Anders v. California, O. T. 1966, No. 98, p. 13. We agreed that the California rule might improperly encourage counsel to consider the burden on the court in determining whether to prosecute an appeal. Wisconsin’s Rule requiring the attorney to outline why the appeal is frivolous obviously does not pose this danger.

We also do not find that the Wisconsin Rule burdens an indigent defendant’s right to effective representation on appeal or to due process on appeal. We have already rejected the contention that by filing a motion to withdraw on the ground that the appeal is frivolous counsel to an indigent defendant denies his or her client effective assistance of counsel or provides a lesser quality of representation than an affluent defendant could obtain. If an attorney can advise the court of his or her conclusion that an appeal is frivolous without impairment of the client’s fundamental rights, it must follow that no constitutional deprivation occurs when the attorney explains the basis for that conclusion. A supported conclusion that the appeal is frivolous does not implicate Sixth or Fourteenth Amendment concerns to any greater extent than does a bald conclusion.

*444 The Anders brief is not a substitute for an advocate’s brief on the merits. As explained above, it is a device for assuring that the constitutional rights of indigent defendants are scrupulously honored. The Wisconsin Rule does no injury to that purpose, nor does it diminish any right a defendant may have under state law to an appeal on the merits. Once the court is satisfied both that counsel has been diligent in examining the record for meritorious issues and that the appeal is frivolous, federal concerns are satisfied and the case may be disposed of in accordance with state law. Of course, if the court concludes that there are nonfrivolous issues to be raised, it must appoint counsel to pursue the appeal and direct that counsel to prepare an advocate’s brief before deciding the merits.

It bears emphasis that the attorney’s obligations as an advocate are not diminished by the additional requirement imposed by the Wisconsin Rule. The attorney must still provide his or her client precisely the services that an affluent defendant could obtain from paid counsel — a thorough review of the record and a discussion of the strongest arguments revealed by that review. In searching for the strongest arguments available, the attorney must be zealous and must resolve all doubts and ambiguous legal questions in favor of his or her client. Once that obligation is fulfilled, however, and counsel has determined that the appeal is frivolous — and therefore that the client’s interests would not be served by proceeding with the appeal — the advocate does not violate his or her duty to the client by supporting a motion to withdraw with a brief that complies with both Anders and the Wisconsin Rule.

The judgment of the Wisconsin Supreme Court is

Affirmed.

Justice Kennedy took no part in the consideration or decision of this case.

Rule 809.32, Wis. Rules of App. Proc., provides:

“Rule (No merit reports) (1). If an attorney appointed under s.809.30 or ch. 977 is of the opinion that further appellate proceedings on behalf of the defendant would be frivolous and without any arguable merit within the *431 meaning of Anders v. California, 386 U. S. 738 (1967), the attorney shall file with the court of appeals 3 copies of a brief in which is stated anything in the record that might arguably support the appeal and a discussion of why the issue lacks merit. The attorney shall serve a copy of the brief on the defendant and shall file a statement in the court of appeals that service has been made upon the defendant. The defendant may file a response to the brief within 30 days of service.

“(2) The attorney shall file in the trial court a notice of appeal of the judgment of conviction and of any order denying a postconviction motion. The clerk of the trial court shall transmit the record in the case to the court pursuant to s.809.15. The no merit brief and notice of appeal must be filed within 180 days of the service upon the defendant of the transcript under s.809.30(l)(e).

“(3) In the event the court of appeals finds that further appellate proceedings would be frivolous and without any arguable merit, the court of appeals shall affirm the judgment of conviction and the denial of any post-conviction motion and relieve the attorney of further responsibility in the ease. The attorney shall advise the defendant of the right to file a petition for review to the supreme court under s.809.62.”

The brief stated, in part:

“Counsel would no longer be an advocate, as required by Anders, but would be in the awkward position of arguing why his client’s appeal lacks merit. This would be contrary to the mandate of Anders that the attorney not brief the case against the client and that the attorney act as an advocate. Since an attorney is legally bound to represent the best interests of his or her client until relieved from further representation by this court, defendant and this attorney submit that a discussion of why any issue lacks merit would violate the sixth amendment.” App. 15-16.

In his request for a declaratory judgment and a writ of prohibition, appellant asked the Supreme Court to “strike that portion of rule 809.32(1) which requires that the attorney provide reasons why the issue lacks merit as unconstitutional, prohibit the court of appeals from striking the brief already filed, and prohibit the court of appeals from requiring petitioner to provide reasons why relator’s appeal lacks merit in compliance with Rule 809.32(1).” Id., at 54.

“We have previously recognized, in a case decided prior to the enactment of the no-merit rule, that the Anders analysis compels appointed counsel to ‘perform his duties as adequately as paid counsel so the indigent will not be deprived of adequate representation because of his indigency.’ Cleghorn v. State, 55 Wis. 2d 466, 471, 198 N. W. 2d 577 (1972). We reaffirm our belief in that principle.” 137 Wis. 2d, at 97, 403 N. W. 2d, at 452.

“While Anders does not sanction the use of the discussion requirement, it does not proscribe it, either.” Ibid.

“[W]e do not believe the rule requires an attorney to argue against the client; rather, we believe the rule requires an attorney to fulfill a duty that co-exists with the duty owed to the client — that duty which is owed to the court. The court will be better equipped to make the correct decision about the potential merits of the appeal if it has before it not only the authorities which might favor an appeal, but also the authorities which might militate against it.” Id,. at 100-101, 403 N. W. 2d, at 454.

“Appointed appellate criminal defense counsel’s request to withdraw in itself puts the court on notice that counsel considers the arguments in the no-merit brief frivolous. Once raised, frivolous arguments by their very nature should not be difficult for a court to evaluate on its own without counsel supplying case authorities or factual references which militate against the appeal.” Id., at 106, 403 N. W. 2d, at 456 (Abrahamson, J., dissenting).

“See ABA Standards for Criminal Justice, Commentary to 4 — 3.9 (2d ed. 1980) (‘No lawyer, whether assigned by the court, part of a legal aid or defender staff, or privately retained or paid, has any duty to take any steps or present dilatory or frivolous motions or any actions that are unfounded according to the lawyer’s informed professional judgment. On the contrary, to do so is unprofessional conduct’); ABA Standing Committee on Ethics and Professional Responsibility, Informal Opinion 956, Obligation to Take Criminal Appeal, reprinted in 2 Informal Ethics Opinions 955-956 (1975) (like court-appointed lawyer, private counsel ‘ethically, should not clog the courts with frivolous motions or appeals’). See also Nickols v. Gagnon, 454 F. 2d 467, 472 (CA7 1971).” Polk County v. Dodson, 454 U. S. 312, 323-324, n. 14 (1981).

“Of course, if counsel finds his ease to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.” 386 U. S., at 744 (emphasis added).

The terms “wholly frivolous” and “without merit” are often used interchangeably in the Anders-hrief context. Whatever term is used to describe the conclusion an attorney must reach as to the appeal before *439 requesting to withdraw and the court must reach before granting the request, what is required is a determination that the appeal lacks any basis in law or fact.

The question presented by Anders’ certiorari petition read as follows: “May a State appellate court refuse to provide counsel to brief and argue an indigent criminal defendant’s first appeal as of right on the basis of a conelusory statement by the appointed attorney on appeal that the case has no merit and that he will file no brief?” See Brief for Petitioner in Anders v. California, O. T. 1966, No. 98, p. 2.

The court gave a negative answer to that question. A “condusory statement” by counsel is not sufficient to justify an appellate court’s refusal to provide counsel to argue an indigent defendant’s appeal. For the court — not counsel — must “decide whether the [appeal] is wholly frivolous,” 386 U. S., at 744, and counsel must provide the court with sufficient guidance to make sure that counsel’s appraisal of the case is correct.

Although a wealthy defendant cannot pay to have frivolous arguments presented to the court unless he or she locates an unscrupulous attorney, such a defendant can pay to have a competent attorney examine the trial court record, search for error, and explain to him or her the strongest arguments that could be made in support of an appeal.

It is essential to keep in mind that the so-called “Anders brief” is not expected to serve as a substitute for an advocate’s brief on the merits, for *440 it would be a strange advocate’s brief that would contain a preface advising the court that the author of the brief is convinced that his or her arguments are frivolous and wholly without merit. Rather, the function of the brief is to enable the court to decide whether the appeal is so frivolous that the defendant has no federal right to have counsel present his or her case to the court.

Rule 3.3 of the ABA Model Rules of Professional Conduct (1984) provides in part:

“CANDOR TOWARD THE TRIBUNAL

“(a) A lawyer shall not knowingly:

“(1) make a false statement of material fact or law to a tribunal;

“(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

“(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; oí

“(4) offer evidence that the lawyer knows to be false.”

The commentary to the Rule explains, “[t]here are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation.” See also G. Hazard & W. Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct 352 (1985) (“The duty to reveal adverse precedent is well established”).

See Brief for the National Legal Aid and Defender Association et al. as Amici Curiae 6.

Anders argued in his brief that counsel should be required to state why he or she thought the appeal frivolous. He referred with approval in his *443 brief to the practice of the United States Court of Appeals for the District of Columbia Circuit, which required counsel to “convince the court that the issues are truly ‘frivolous’ ... in a documented memorandum which analyzes the facts and applicable law.” Brief for Petitioner in Anders v. California, O. T. 1966, No. 98, p. 16.