October 5, 2004

ADM File No. 2000-32

Administrative Order No. 2004-6

Minimum Standards for Indigent 
Criminal Appellate Defense Services
                              

     On order of the Court, this is to advise that the Court has considered revised
minimum standards for indigent criminal appellate defense services proposed by the
Appellate Defender Commission pursuant to 1978 PA 620, MCL 780.711 to 780.719.  
The Court approves the standards with some revisions replacing those adopted in
Administrative Order No. 1981-7, effective January 1, 2005.

PREAMBLE:

     The Michigan Legislature in MCL 780.712(5) requires the Appellate Defender
Commission to develop minimum standards to which all criminal appellate defense
services shall conform.  Pursuant to this mandate, these standards are intended to serve as
guidelines to help counsel achieve the goal of effective appellate and postjudgment
representation.  Criminal appellants are not constitutionally entitled to counsel's
adherence to these guidelines.  Hence, counsel's failure to comply with any standard does
not of itself constitute grounds for either a claim of ineffective assistance of counsel or a
violation of the Michigan Rules of Professional Conduct, and no failure to comply with
one or more of these standards shall, unless it is independently a violation of a rule of
professional conduct, serve as the basis for a request for investigation with the Attorney
Grievance Commission.


Standard 1

Counsel shall promptly examine the trial court record and register of actions to
determine the proceedings, in addition to trial, plea, and sentencing, for which transcripts
or other documentation may be useful or necessary, and, in consultation with the
defendant and, if possible, trial counsel, determine whether any relevant proceedings
have been omitted from the register of actions, following which counsel shall request
preparation and filing of such additional pertinent transcripts and review all transcripts
and lower court records relevant to the appeal.  Although the trial court is responsible for
ordering the record pursuant to MCR 6.425(F)(2), appellate counsel is nonetheless
responsible for ensuring that all useful and necessary portions of the transcript are
ordered. 

Standard 2

     Before filing the initial postconviction or appellate motion or brief and after
reviewing the relevant transcripts and lower court records, counsel must consult with the
defendant about the proposed issues to be raised on appeal and advise of any foreseeable
benefits or risks in pursuing the appeal generally or any particular issue specifically.  At
counsel's discretion, such confidential consultation may occur during an interview with
the defendant in person or through an attorney agent, by a comparable video alternative,
or by such other reasonable means as counsel deems sufficient, in light of all the
circumstances.

Standard 3

Counsel should raise those issues, recognizable by a practitioner familiar with
criminal law and procedures on a current basis and who engages in diligent legal
research, which offer reasonable prospects of meaningful postconviction or appellate
relief, in a form that protects where possible the defendant's option to pursue collateral
attacks in state or federal courts.  If a potentially meritorious issue involves a matter not
reflected in the trial court record, counsel should move for and conduct such evidentiary
hearings as may be required.

Standard 4

When a defendant insists that a particular claim or claims be raised on appeal
against the advice of counsel, counsel shall inform the defendant of the right to present
the claim or claims [in] [propria persona.]  Defendant's filing shall
consist of one brief filed with or without an appropriate accompanying motion.  Counsel
shall also provide such procedural advice and clerical assistance as may be required to
conform the defendant's filing for acceptability to the court.  The defendant's filing
[in propria persona ]must be received by the Court of Appeals within 84 days
after the appellant's brief is filed by the attorney, but if the case is noticed for submission
within that 84-day period, the filing must be received no later than 7 days before the date
of submission, or within the 84-day period, whichever is earlier. The 84-day deadline
may be extended only by the Court of Appeals on counsel's motion, upon a showing of
good cause for the failure to file defendant's pleading within the 84-day deadline. 
                                
                                
                                
                                
Standard 5

     An appeal may never be abandoned by counsel; an appeal may be dismissed on
the basis of the defendant's informed consent, or counsel may seek withdrawal pursuant
to [Anders v California, ]386 US 738; 87 S Ct 1396; 18 L Ed 2d 493 (1967),
and related constitutional principles.

Standard 6

Counsel should request oral argument, and preserve the right to oral
argument by timely filing the defendant's brief on appeal.  Oral argument may be
waived if counsel subsequently concludes that the defendant's rights will be
adequately protected by submission of the appeal on the briefs alone.

Standard 7

     Counsel must keep the defendant apprised of the status of the appeal and promptly
forward copies of pleadings filed and opinions or orders issued by a court.

Standard 8

     Upon final disposition of the case by the court, counsel shall promptly and
accurately inform the defendant of the courses of action that may be pursued as a result
of that disposition, and the scope of any further representation counsel may provide.  If
counsel's representation terminates, counsel shall cooperate promptly and fully with the
defendant and any successor counsel in the transmission of records and information.

Standard 9

     Upon acceptance of the assignment, counsel is prohibited from seeking or
accepting fees from the defendant or any other source beyond those authorized by the
appointing authority.


     Young, J. ([dissenting]).  I respectfully dissent from this Court's
adoption of Standard 4.  As we held in [People v Adkins (After Remand)], 452
Mich 702, 720 (1996), a criminal defendant has a constitutional right of self-
representation or to counsel, but not both.  The "right" to which Standard 4
refers—assistance from counsel when a defendant proceeds [in propria
persona]—is a hybrid right that has no basis in law.      
     
     Additionally, by adopting Standard 4, this Court potentially places counsel who
assists a defendant proceeding [in propria persona] in an ethical dilemma. 
Standard 4 requires counsel to assist the criminal defendant with a claim even after
counsel has made a professional judgment that the claim is unwise, improper, or without
merit.  This obligation may conflict with counsel's duties under Rules 1.2(c), 3.3(a), and
8.4 of the Rules of Professional Conduct.  
     
     While I continue to believe that a criminal defendant has no right to assistance of
counsel when proceeding [in propria persona], and therefore dissent from the
adoption of Standard 4, I believe that the following sentence should be added to Standard
4 to address the potential ethical dilemma that counsel may face:
     
     Nothing in this provision shall be construed as requiring counsel to assist in
     an unethical act or in behavior inconsistent with the Rules of Professional
     Conduct.          

     Corrigan, C.J., concurs with Young, J.

     Staff Comment:  The Appellate Defender Commission submitted proposed
revised standards for indigent criminal appellate defense services.  The revised standards
replace those adopted in Administrative Order No. 1981-7, effective January 1, 2005. 

Standard 1 corresponds to former Standard 6 regarding counsel's obligation to
review the lower court records and promptly request and review the transcripts.  Standard
1 recognizes that pursuant to MCR 6.425(F)(2), the trial court bears the primary
responsibility for ordering the record, but also highlights counsel's responsibility for
ensuring that the trial court orders all useful and necessary portions of the transcript.

Standard 2 corresponds to former Standards 3 and 4, which related to counsel's
obligation to consult with the client about the appellate issues and any foreseeable risks
or benefits in pursuing the appeal.  It clarifies that counsel generally should warn
defendant not only of the risks and benefits of pursuing the appeal, but also the risks and
benefits of pursuing a particular issue.  This standard does not mandate a personal
meeting with the defendant as did former Standard 3

Standard 3 corresponds to former Standard 9, regarding counsel's duties to raise
issues that offer reasonable prospects of meaningful postconviction relief and to former
Standard 8, regarding counsel's obligation to move for and conduct any necessary
evidentiary hearings.

Standard 4 corresponds to former Standard 11 regarding briefs filed by defendants
[in propria persona].  This standard sets a deadline for the filing of such briefs
of 84 days from the date that the attorney files the appellant's brief.  The standard
continues the requirement that appellate counsel provide the defendant with clerical
assistance in filing the brief [in propria persona] and allows extensions of this
deadline only upon a showing of good cause for the failure to file the defendant's brief
within the 84-day deadline.

     Standard 5 replaces former Standard 12 regarding dismissal of the appeal.  It
deletes the requirement for written consent and allows counsel to dismiss the appeal on
the basis of the defendant's "informed consent."  It also allows counsel to seek
permission to withdraw where, in counsel's opinion, there are no meritorious appellate
issues.

     Standard 6 incorporates the principles articulated in former Standards 15 and 16
relating to counsel's obligation to timely file the defendant's pleadings and request and
present an oral argument on the defendant's behalf.  

     Standard 7 is a more concise version of former Standard 17, but its provisions are
essentially identical.  Counsel is required to keep the defendant apprised of the appeal
and send the defendant copies of pleadings and court orders or opinions.

     Standard 8 incorporates the requirements of former Standards 18 and 19.  It states
that upon the court's final disposition of the case, counsel shall promptly and accurately
inform the defendant of the courses of action that may be pursued and the scope of any
further representation counsel may provide.  If the Court of Appeals disposition
terminates counsel's representation, counsel shall cooperate fully with the defendant or
successor counsel in the transmission of records and information.

     Standard 9 corresponds to former Standard 20, prohibiting appointed counsel
from seeking or accepting fees from the defendant or any other source beyond those
authorized by the appointing authority.

     The staff comment is not an authoritative construction by the Court.