You are appointed counsel by a trial court to represent a client in a criminal matter. The client pleads guilty or is found guilty, and as far as you can tell, the prosecution is by the book. There are no grounds for an appeal, so the case is over, right? Not exactly. There are certain duties of counsel to pursue these appeals regardless of whether there is any underlying meritorious basis to do so. Which begs the question – if there are no meritorious good faith grounds for an appeal, what are your obligations under Rule 3.1 of the Virginia Rules of Professional Conduct?[1] The good news is that Rules of the Supreme Court of Virginia contain the answer. The bad news is that if you do not follow what is required of you, it could very well trigger a bar complaint that could result in discipline, even if your client’s appeal did not have any chance of success.
The Supreme Court of Virginia has issued a mandate to the Virginia State Bar (VSB) to investigate every lawyer who has had three procedural defaults during any given period. Oftentimes, these complaints result from lawyers who fail to file the necessary paperwork to fulfill their ethical obligations to their clients and their ethical duties under Rules 1.3,1.4, and 3.1 of the Virginia Rules of Professional Conduct – the Anders Brief. If you practice criminal law, there is a good chance that you will one day be on the receiving end of a bar complaint. By being proactive, keeping your client informed, and following the steps outlined herein, you can keep an appeal without merit from becoming a bar complaint with merit and subsequent discipline.
In 1967, the United States Supreme Court issued its opinion in the case of Anders v. State of California, 386 U.S. 738, 87 S. Ct. 1396, 18 L.Ed. 2d 493 (1967). After being convicted of felony possession of marijuana, Charlie Anders requested court appointed counsel to perfect an appeal of his conviction. Court appointed counsel, after reviewing the record and conferring with Mr. Anders, wrote a letter to the California appellate court stating he would not file an appeal after determining no non-frivolous grounds for an appeal existed. Counsel further advised the appellate court that Mr. Anders wished to file his own appeal. The appellate court thereafter denied Mr. Anders’ request for the appointment of different counsel, and also denied Mr. Anders’ subsequent pro se appeal. 386 U.S. at 739-40.
Several years later, Mr. Anders filed a writ of habeas corpus alleging that he was denied his right to counsel. That writ was denied all the way through the California appellate system and found its way to Washington, D.C. after the United States Supreme Court granted certiorari. Citing the landmark case of Gideon v. Wainwright, 372 U.S. 335 (1963), making the Sixth Amendment to the United States Constitution obligatory on the states through the Fourteenth Amendment, the Court found that the “constitutional requirement of substantial equality and fair process can only be obtained where counsel acts in the role of an active advocate of his client, as opposed to that of amicus curiae”, and that the no merit letter that Mr. Anders’ counsel tendered to the appellate court was therefore insufficient. 386 U.S. at 744.
To satisfy substantial equality and fair process, the United States Supreme Court held that if counsel determines their client’s appeal is wholly frivolous after a conscientious examination of the record, they should so advise the court and seek leave to withdraw. Such a request must be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of that brief should be provided to the client with sufficient time to allow them to raise any points they choose. The reviewing court must then conduct a full review of the case to determine whether the appeal is wholly frivolous. If the appellate court finds the appeal is indeed frivolous, the court may grant the motion to withdraw. If the reviewing court determines that there exist any points of appeal arguable on their merits, the indigent defendant must be afforded the assistance of counsel, through the appointment of other counsel. Id.
Both the Court of Appeals of Virginia and the Supreme Court of Virginia have adopted the requirements of Anders. See Akbar v. Commonwealth, 7 Va. App. 611, 376 S.E.2d 545 (1989). The holding was subsequently embodied in the Rules of the Supreme Court of Virginia and can now be found at Rule 5A20(i). and the requirements of an Anders brief in the Court of Appeals of Virginia are as follows:
Procedure for an Anders Appeal.
If counsel for appellant finds appellant’s appeal to be without merit, counsel must comply with the requirements of Anders v. California, 386 U.S. 738 (1967), and Brown v. Warden of Virginia State Penitentiary, 238 Va. 551, 385 S.E.2d 587 (1989). In compliance therewith, counsel is required to file:
- a petition for appeal which refers to anything in the record which might arguably support the appeal and which demonstrates to this Court counsel’s conscientious examination of the merits of the appeal;
- a motion for leave to withdraw as counsel; and
- a motion for an extension of time to allow the appellant to file a supplemental petition for appeal. The petition for appeal and the motion for leave to withdraw as counsel should specifically cite to Anders.
All three pleadings must be served on opposing counsel and upon the client and must contain a certificate providing evidence of such service. This Court will rule upon the motion for extension of time upon its receipt, but will not rule on the motion to withdraw until this Court considers the case in its entirety, including any supplemental petition for appeal that may be filed.
The Supreme Court of Virginia has likewise embodied the exact same language in Rule 5:17(h). So, no matter where you are in the appellate process, if your client directs you to file an appeal, no matter how frivolous it may appear, case law and the rules of court require you to comply with the requirements of Anders.
The duty to file an Anders brief lies even if a client enters into a guilty plea and replies affirmatively to a trial court colloquy where they openly acknowledge that by pleading guilty, they waive the right to an appeal. In Virginia Legal Ethics Opinion 1880, the Ethics Committee of the Virginia State Bar (“Committee”) concluded that “any indigent defendant, or any defendant represented by counsel or acting pro se who enters a plea of guilty or nolo contendere does not waive a ‘right to appeal,’ even if such right is rendered hollow because the appeal would be frivolous due to a waiver of grounds of appeal” (emphasis in original).[2]
Once your client is convicted, it is your ethical duty to inform them of their right to appeal. If they choose to exercise that right, and you do not see any meritorious grounds for pursuing an appeal, always consider the Anders brief. If your client requests an appeal, and you begin the process by noting an appeal, always remember to withdraw an appeal pursuant to your client’s direction. Leaving it up to the Court to dismiss because some aspect of the requirements of perfecting an appeal was not met, and thereby triggering a procedural default, will count against you towards the three strikes that triggers an automatic complaint to the Virginia State Bar.
There’s one last piece of advice for court appointed lawyers. Should you be on the receiving end of a bar complaint, contact the Division of Risk Management of the Department of the Treasury to see if you are eligible to have an attorney appointed to represent your interests. Va. Code § 2.2-1839.C provides coverage in the risk management plan to court appointed attorneys. Call and see if you qualify – it’s always best to have someone with experience in bar matters guide you through the process. In serious cases, an attorney could be facing a sanction that could jeopardize their law license.
