MCCOY v. COURT OF APPEALS OF WISCONSIN, DISTRICT 1
No. 87-5002
Supreme Court of the United States
Argued January 20, 1988-Decided June 6, 1988
486 U.S. 429
Louis B. Butler, Jr., argued the cause and filed briefs for appellant.
Stephen W. Kleinmaier, Assistant Attorney General of Wisconsin, argued the cause for appellee. With him on the brief was Donald J. Hanaway, Attorney General.*
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-
*Kim Robert Fawcett, John A. Powell, Steven R. Shapiro, and Larry W. Yackle filed a brief for the National Legal Aid and Defender Association et al. as amici curiae.
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
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 сomply 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
“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,
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 amicus 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-
II
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 defensе 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.
“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, 777 F. 2d 364, 365 (CA7 1985).
“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
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 colorable claims and defensеs, 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), “[a]bsolute 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 mаster 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
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
III
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 meritless. 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
The aspеct 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-
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 аffluent 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.
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 thе 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.
Indigent and incarcerated, appellant Ellis T. McCoy fights an uphill battle to overturn his conviction. Standing alone, he is hardly a match against the formidable resources the State has committed to keeping him behind bars. Appellant‘s most crucial ally in this fight is the court-appointed appellate counsel that the State is constitutionally obligated to furnish him. Because the very State that is resolved to deprive appellant of liberty pays his defense counsel, he might understandably suspect his defender‘s allegiance. Sensitive to that natural distrust, we have always assured indigent defendants such as appellant that our Constitution‘s guarantee that “the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense,” U. S. Const., Amdt. 6, “contemplates the services of an attorney devoted solely to the interests of his client.” Von Moltke v. Gillies, 332 U. S. 708, 725 (1948) (plurality opinion) (citation omitted). We have counseled them not to fear that they will receive no more justice than they can afford, because the “constitutional requirement of substantial equality and fair process” means that the rich and poor alike deserve “the same rights and opportunities on appeal . . . .” Anders v. California, 386 U. S. 738, 744, 745 (1967). The Court today reneges on these longstanding assurances by permitting a State to force its appointed defender of the indigent to advocate against his client upon unilaterally concluding that the client‘s appeal lacks merit. I dissent.
I
“The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.” Herring v. New York, 422 U. S. 853, 862 (1975). See also Kimmelman v. Morrison, 477 U. S. 365, 379-380 (1986). Accordingly, our Constitution imposes on defense counsel an “overarching duty,”
Naturally, the defense counsel‘s duty to advocate, whether on appeal or at trial, is tempered by ethical rules. For example, counsel may not in his or her zeal to advocate a client‘s case fabricate law or facts or suborn perjury, and must at times disclose law contrary to the client‘s position. See ante, at 440-441, and n. 14. Similarly, defense counsel have an ethical duty not to press appeals they believe to be frivolous, even though other lawyers might see an issue of arguable merit. See Polk County, supra, at 323-324. For retained counsel, who may decline to represent a paying client in what counsel believes to be a frivolous appeal, the latter duty does not interfere with the duty of unwavering allegiance to the client. Since, however, court-appointed counsel may withdraw only with court approval, the indigent client who insists on pursuing an appeal that counsel finds frivolous presents a
We have struck a delicate balance permitting an appointed counsel to satisfy his or her ethical duty to the court in the mаnner that least compromises the constitutional duty to advocate the client‘s case and that thereby minimizes the disadvantage to the indigent. Our cases make abundantly clear that an appointed counsel‘s constitutional duty to advocate zealously on the client‘s behalf does not end abruptly upon his or her conclusion that the client has no case. We have, for example, flatly disapproved of a regime that permits appointed defense counsel-or anyone other than the appellate tribunal itself-to adjudge finally the worthiness of an indigent defendant‘s appeal. See Lane v. Brown, 372 U. S. 477, 485 (1963); Anders v. California, supra, at 744 (“[T]he court - not counsel-then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous“).
Similarly, our Constitution strictly limits the appointed counsel‘s latitude to depart from the role of defender-either by declining to advocate at all or, worse yet, by opposing the client-when that counsel believеs his or her client‘s appeal lacks merit. In Anders, supra, we held that a court may not permit appointed counsel to withdraw from a criminal appeal on the basis of the bald assertion that “there is no merit to the appeal.” Id., at 742. Instead, appointed counsel‘s “role as advocate requires that he support his client‘s appeal to the best of his ability” and that any request to withdraw on the ground that the appeal is frivolous “must . . . be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id., at 744. Central to our analysis was the constitutional imperative to “assure penniless defendants the same rights and opportunities on appeal-as nearly as is practicable-as are enjoyed by those persons who are in a similar situation but who are able to afford the retention of private counsel.” Id., at 745. This “constitutional
Anders’ injunction against casting appointed counsel in the role of an amicus who might “brief his case against his client” is best understood in light of Ellis v. United States, 356 U. S. 674 (1958) (per curiam), on which Anders relied, where we concluded that defense counsel abdicated their role as advocates by arguing to the court that their client‘s appeal was meritless. After identifying a single “‘possible’ area of error,” Ellis v. United States, 101 U. S. App. D. C. 386, 387, 249 F. 2d 478, 479 (1957) (en banc), as presumably Anders would require counsel to do, the “defense” memorandum proceeded to prove (not merely to announce) that “there was not such merit even in this aspect of the appeal as to warrant further prosecution of the appeal,” and that therefore “no substantial question existed in this case.” Ibid. (emphasis omitted). The Court of Appeals commended the defense counsel‘s conduct as faithful to their duty “to advise the court in this matter.” Id., at 386, 249 F. 2d, at 478 (emphasis in original). See also ibid. (“[C]ounsel should determine for the benefit of this court whether the case warranted review“); id., at 387, 249 F. 2d, at 479 (“[C]ounsel appointed by the court to represent indigent defendants who wish to appeal their convictions owe an obligation to the court as well as to their clients“). We summarily vacated the judgment and remanded, roundly criticizing the role that the Court of Appeals encouraged counsel to play: “In this case, it appears that the two attorneys appointed by the Court of Appeals, performed essentially the role of amici curiae. But repre-
Anders and Ellis together carefully prescribe the contours of appointed counsel‘s constitutional duty upon concluding that an appeal lacks merit. Appointed counsel must advocate anything in the record arguably supporting the client‘s position. When counsel has nothing further to say in the client‘s defense, he or she should say no more. At that point, an unadorned stаtement that counsel believes the appeal to be frivolous satisfies the appointed counsel‘s constitutional duty to the client and ethical duty to the court, see Polk County, 454 U. S., at 323, and any further discussion of the merits impermissibly casts defense counsel in the role of amicus.
II
Wisconsin‘s Rule 809.32(1) forces appointed counsel to do exactly what we denounced in Ellis and Anders. The Rule begins with the requirement, consistent with Anders, that appointed counsel “shall file with the court of appeals . . . a brief in which is stated anything in the record that might arguably support the appeal,” but in the next breath it departs from Anders’ prescription by requiring also “a discussion of why the issue lacks merit.”
The Court‘s curious conclusion that counsel nevertheless does not act as an amicus curiae when he or she files the requisite no-merit discussion is rooted in a single observation: that the requirement poses little danger that counsel, in deciding whether “to pursue the appeal,” will improperly “weig[h] the probability of success against the time burdens on the court and the attorney.” Ante, at 443 (citation omitted). But declining to burden the court with another case or another brief is not the only, nor even the most common, sense in which counsel act as amici, and is assuredly not the meaning that Anders and Ellis ascribed to the term. The most common definition of ”amicus curiae” is “[a] person with a strong interest in or views on the subject matter of an action [who] petition[s] the court for permission to file a brief . . . to suggest a rationale consistent with its own views.” Black‘s Law Dictionary 75 (5th ed., 1979). And as the numerous passages quoted above from Ellis and Anders make clear, the Court‘s reference to amici focused more on the concern that counsel might advocate against their client than on the concern that they might not advocate at all (a possibility that Anders itself prohibits). Thus, the Wisconsin Rule falls
Not only does Wisconsin‘s Rule impinge upon the right to counsel, but-contrary to our admonition that “there can be no equal justice where the kind of appeal a man enjoys ‘depends on the amount of money he has,‘” Douglas, 372 U. S., at 355 (quoting Griffin v. Illinois, 351 U. S. 12, 19 (1956) (plurality opinion))-it does so in manner that ensures the poor will not have “the same rights and opportunities on appeal” as the rich. Anders, supra, at 745. Central to the Court‘s contrary position is its repeated observation that neither rich nor poor are entitled to pursue a frivolous appeal. See ante, at 436, 438-439. At issue here, however, is not the indigent‘s right “to pester a court with frivolous arguments . . . that cannot conceivably persuade the court,” ante, at 436 (citation omitted), nor the right to a state-funded “unscrupulous attorney” to do so, ante, at 439, n. 12, but the indigent‘s right to the usual adversary appellate process to test the validity of a conviction even though a single attorney unilaterally concludes that the appeal lacks merit. Legal issues do not come prepackaged with the labels “frivolous” or “arguably meritorious.” If such characterizations were typically unanimous or uncontroversial, we could freely permit defense counsel to decide finally whether an appeal should proceed, but see Lane v. Brown, 372 U. S. 477 (1963), or to advise the court without any advocacy on their clients’ behalf that an appeal is frivolous, but see Anders, supra; Ellis, supra. It by no means impugns the legal profession‘s integrity to acknowledge that reasonable attоrneys can differ as to whether a particular issue is arguably meritorious.
Therein lies the Wisconsin Rule‘s inequity. When retained counsel in Wisconsin declines to appeal a case on the ground that he or she believes the appeal to be frivolous, the wealthy client can always seek a second opinion and might well find a lawyer who in good conscience believes it to have arguable merit. In no event, however, will any lawyer file in the
The Court is left, then, to justify the inequality on the basis of an imagined distinction between the “typical advocate‘s brief in a criminal appeal” and the Anders brief. Ante, at 442.2 It is true that the question presented to the court in an Anders brief (whether the appeal has arguable merit) differs from that presented in a brief on the merits (whether the accused should prevail). Any substantive difference between the two questions, however, does not in itself suggest, as the Court maintains, that counsel‘s advocacy on behalf of a client should be any less forceful in the one context than in the other. Anders itself makes clear that the role of counsel writing an Anders brief, like his or her role in a “typical advocate‘s brief,” is to advocate. The no-merit letter filed by Anders’ lawyer was flawed because it “did not furnish [An-
To be sure, the Anders brief, unlike the typical brief on the merits, concludes with an assertion-“This appeal is frivolous“-that is contrary to the client‘s interest. It does not, however, follow that “no constitutional deprivation occurs when the attorney explains the basis for that conclusion.” Ante, at 443. Such a conclusion, the Court seems to agree, is no different in type from other statements that defense attorneys are obligated to make against their clients’ best interests, such as an admission that the weight of authority is against the client‘s position or that certain facts belie the client‘s case. See ante, at 440-441, and n. 14. No one would suppose that the limited obligation to cite contrary law and facts translates into a general obligation to expose all the weaknesses in a client‘s case, or even to explain why the particular law or facts cited disfavor the defense. Merely because counsel constitutionally may take slight deviations from the role of advancing the client‘s undivided interests does not mean that counsel constitutionally may entirely abandon that role, nor even that counsel may depart from that role any more than is absolutely necessary to satisfy the ethical obligation.3
The Court purports to leavе unscathed the constitutional axiom that appellate counsel “must play the role of an active advocate, rather than a mere friend of the court,” Evitts, 469 U. S., at 394. Our disagreement boils down to whether defense counsel who details for a court why he or she believes a client‘s appeal is frivolous befriends the client or the court. The Court looks at Wisconsin‘s regime and sees a friend of the client who “assur[es] that the constitutional rights of indigent defendants are scrupulously honored.” Ante, at 444. I look at the same regime and see a friend of the court whose advocacy is so damning that the prosecutor never responds. See Tr. of Oral Arg. 13-14, 30. Either way, with friends like that, the indigent criminal appellant is truly alone.
Notes
“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 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(1)(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 pоstconviction motion and relieve the attorney of further responsibility in the case. The attorney shall advise the defendant of the right to file a petition for review to the supreme court under s.809.62.”
Viewed in that light, our statement in Anders that we “would not force appointed counsel to brief his case against his client,” Anders v. California, 386 U. S. 738, 745 (1967), or to act as an amicus curiae, is directly responsive to Anders’ argument that, notwithstanding Ellis, “[c]ounsel must convince the court that the issues are truly ‘frivolous.’ This must be done 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.“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.
As a preliminary matter, the Court‘s contention that the brief prescribed by Wisconsin law “is not a substitute for an advocate‘s brief on the merits,” ante, at 444; see also ante, at 439-440, n. 13, is belied by the reality that such briefs usually culminate not simply in a grant of counsel‘s motion to withdraw, but in an affirmance of the conviction, seeThe court gave a negative answer tо that question. A “conclusory 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.
“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; or
“(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 Mоdel Rules of Professional Conduct 352 (1985) (“The duty to reveal adverse precedent is well established“).