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Although the Anders majority does not state this assumption explicitly, the dissent's accusation is well-founded. Under the Anders procedure, the Court of Appeals duplicates counsel's role of examining the entire record for issues to appeal. See id., at 744. The Janus-faced Anders brief filed by counsel is often either perfunctory or a brief against the client. See R. Hermann, Frivolous Criminal Appeals, 47 N. Y. U. L. Rev. 701, 711-712 (1972). At best, the "brief referring to anything in the record that might arguably support the appeal," Anders, 386 U. S., at 744, requires counsel to point out potential flaws in his or her analysis to the court, which shows little confidence in appointed counsel's abilities.
Anders also betrays a low opinion of retained counsel. The decision is based on giving indigent and nonindigent defendants essentially equal access to the courts. See id., at 745; McCoy v. Court of Appeals of Wisconsin, 486 U. S. 429, 438 (1988). Thus, "[i]n imposing this burden only upon attorneys representing 'penniless defendants' the court assumes, first, that anyone 'able to afford the retention of private counsel' has the right and opportunity to present any appeal, no matter how meritless it may be." Pengilly, Never Cry Anders: The Ethical Dilemma of Counsel Appointed to Pursue a Frivolous Criminal Appeal, 9 Crim. Just. J. 45, 49 (1986). From this follows Anders' belief that "private lawyers will undertake the appeal of any criminal conviction, even a frivolous one so long as they are compensated." Doherty, Wolf! Wolf!--The Ramifications of Frivolous Appeals, 59 J. Crim. L., Criminology & Police Sci. 1, 3 (1968). Anders thus defines the standard of practice for retained counsel at this lowest, most mercenary common denominator:
"Since, speaking realistically, a criminal defendant who has money will always be able to persuade some lawyer to prosecute an appeal for him, parity--or, again speaking realistically, an approximation to parity--between criminal defendants who do and those who do not have monetary means requires that the appointed counsel who wants to withdraw not leave his client wholly in the lurch, which is the practical consequence of the 'no merit' letter. Instead he must file a brief that will advise the court of what points he might have raised and why he thinks they would have been frivolous." United States v. Edwards, 777 F. 2d 364, 365 (CA7 1985) (per curiam).
This characterization of counsel that is the heart of Anders is corrosive and unfair. While some lawyers may file anything for money, ethical lawyers will not file a frivolous appeal regardless of the monetary consequences. See, e.g., ABA Model Rules of Professional Conduct, Rule 3.1 (1992); Doherty, supra, at 3. The overwhelming majority of lawyers do not abandon their profession responsibilities. See United States v. MacCollom, 426 U. S. 317, 326 (1976) (plurality).
Allowing constitutional standards to be defined by such unethical conduct is corrosive to the legal profession. Society and
"the legal profession has . . . been well served by a code of ethics which imposes certain standards beyond those prevailing in the market place and by a duty to place professional responsibility above pecuniary gain." Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 677 (1985) (O'Connor, J., concurring and dissenting).
By virtue of its position at the apex of the federal judiciary, this Court is a leader of the legal profession. Anders is a poor use of this authority. Attorneys "occupy professional positions of responsibility and influence that impose on them duties correlative with their vital right of access to the courts." In re Griffiths, 413 U. S. 717, 729 (1973). They are "leaders in government throughout the history of our country." Ibid.
"Despite the almost continuous criticism leveled at the legal profession, he, too, is an influence in legislation, in the community, and in the role-model figure that the professional person enjoys." Ambach v. Norwick, 441 U. S. 68, 89 (1979) (Blackmun, J., dissenting).
This Court should both presume and expect a higher standard than found in Anders.
In McCoy, supra, this Court devised a more nuanced view of Anders, finding that private counsel might give an Anders-type brief to the client. See 486 U. S., at 439, n. 12. Although more benign than the original spirit of Anders, it still paints an inaccurate picture of counsel's role. McCoy repeats Anders original mistake, basing constitutional protections on what counsel could do as opposed to what an ethical attorney should do. The constitution does not mandate absolute equality, but rather freedom from unreasoned distinctions. See Ross v. Moffitt, 417 U. S. 600, 612 (1974). While retained counsel may give a client with a frivolous appeal an Anders brief, it is, at best, a rarity. A proper Anders brief can involve tremendous work. By one estimate it requires as much work as ten briefs on the merits. See Pengilly, supra, 9 Crim. Just. J., at 62-63. The paying client will rarely be as capable of appreciating it as the appellate judge under the Anders procedure. In almost any circumstance, giving an Anders brief to a paying client would be a waste of the client's money.
"Nor does the Constitution require that an indigent be furnished with every possible legal tool, no matter how speculative its value, and no matter how devoid of assistance it may be, merely because a person of unlimited means might choose to waste his resources in a quest of that kind." MacCollom, supra, 426 U. S., at 317 (Blackmun, J., concurring in the judgment).
Unfortunately, Anders' harm does not stop with the reputation of counsel. Anders' basic mistrust places burdens on counsel and courts that are the greatest cost of this decision.
A brief is "[a] written statement prepared by counsel arguing a case in court. It contains a summary of the facts of the case, the pertinent laws and an argument of how the law applies to the facts supporting counsel's position." Black's Law Dictionary 192 (6th ed. 1990) (emphasis added). Black's definition nicely raises the first problem with the "Anders" brief: what is appointed counsel's position in the brief when he or she refers to items that "may arguably support an appeal"?
If counsel believes that the highlighted issues are not frivolous then the motion to withdraw is deceptive and thus unethical. See ABA Model Rules of Professional Conduct, Rule 3.3 (1992) ("MRPC") (candor to tribunal). The only other realistic reading of an Anders brief is that counsel is asserting that these issues do not have merit, an interpretation supported by counsel's claim that the appeal is frivolous. Although Anders looks for issues "that might arguably support the appeal," the fact that counsel seeks to withdraw because there are no nonfrivolous issues cannot hide his or her opinion of the client's claims.
Identifying specific issues as insufficient to support an appeal typically is considered improper behavior of a professional charged to act as "an active advocate in behalf of his client as opposed to that of amicus curiae." Anders, supra, 386 U. S., at 744.
"A lawyer should pursue a matter on behalf of a client despite opposition, obstruction, or personal inconvenience to the lawyer, and may take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor." MRPC, Rule 1.3, comment (1) (emphasis added).
"[A] defense lawyer best serves the public, not by acting on behalf of the State or in concert with it, but rather by advancing 'the undivided interests of his client.' " Polk County v. Dodson, 454 U. S. 312, 318-319 (1981) (quoting Ferri v. Ackerman, 444 U. S. 193, 204 (1979)).
McCoy v. Court of Appeals of Wisconsin, 486 U. S. 429 (1988) illustrates the type of representation Anders encourages. A Wisconsin rule required an Anders brief "also to include 'a discussion of why the issue lacks merit.' " Id., at 430. Appointed counsel who sought to withdraw naturally refused to argue against his client. See id., at 432, and n. 2. This Court upheld the rule under Anders. See id., at 441-442. The McCoy Court was sympathetic to counsel's predicament.
"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." Id., at 437.
McCoy concluded that the Anders requirement that the court be informed of counsel's conclusion resolved the dilemma. See ibid.
Practitioners, commentators, and judges have found the Anders resolution wanting. As one former public defender noted:
"In short, Anders first requires counsel to make an impossible distinction between the 'meritless' and the 'wholly frivolous.' Having done so, counsel is then required to perform one or the other of two tasks, both of which are impossible and unethical: either argue the merits of claims which are meritless, or explain to the court why those claims are meritless without taking a position adverse to the client's interest." Pengilly, supra, 9 Crim. Just. J., at 52 (footnote omitted).
Anders places an ethical counsel confronted with a frivolous appeal between the Scylla of the duty not to present frivolous claims and the Charybdis of counsel's duty to act as an advocate on behalf of the client's interest.
"I think it is clear, however, that an attorney confronted with the Anders situation has to do something that the Code of Professional Responsibility describes as unethical; the only choice is as to which canon he or she prefers to violate." Id., at 64.
Other practitioners share this experience. A New York Legal Aid attorney described how many counsel dealt with the dilemma:
"Some have written cursory and conclusory briefs which at least cannot be said to be advocacy against one's client, even though they are of little aid to the client or the court in reviewing arguable errors. Others have written briefs detailing at length both the facts and the legal issues and authorities. This, although most helpful to the court, usually is in effect a brief against the client." Hermann, Frivolous Criminal Appeals, 47 N. Y. U. L. Rev. 701, 711-712 (1972) (footnote omitted).
As the author noted, "[h]owever highminded may have been the Court's intentions [in Anders] . . . , in practice they cannot be fulfilled." Id., at 711. A career public defender observed, "Any client is entitled to the very best that a lawyer has to offer; his skill, his knowledge, his experience, and his diligence. But no one has the right to make an intellectual prostitute out of a lawyer." Doherty, Wolf! Wolf!--The Ramifications of Frivolous Appeals, 59 J. Crim. L., Criminology & Police Sci. 1, 3 (1968).
Anders' ethical dilemma has not escaped the attention of commentators. One commentator noted that while the procedure approved in McCoy "does reduce the risk that incompetent or lazy counsel will file a pro forma Anders brief, it intensifies the Anders anomaly when counsel is conscientious." 1 G. Hazard & W. Hodes, The Law of Lawyering §3.1:304, p. 568 (2d ed. 1996 Supp.). As another authority on professional responsibility pointed out, "While the court was well-meaning in developing the Anders procedure, it has proved to promote what amounts to an inherent conflict between the attorney and client . . . ." J. Hall, Professional Responsibility of the Criminal Lawyer 681-682 (2d ed. 1996); see also C. Wolfram, Modern Legal Ethics 817 (1986) ("The Anders directives are confusing, if not contradictory.").
Anders' ethical problem has caused a reaction in some state courts.
"The major difficulty with the Anders procedure is its requirement that an attorney assume contradictory roles if he wishes to withdraw on the grounds that the appeal lacks merit. . . . This Janus-faced approach . . . runs the risk of alienating and frustrating his client, who can scarcely be blamed for feeling abandoned and betrayed . . . ." Commonwealth v. Moffett, 418 N. E. 2d 585, 590 (Mass. 1981) (footnote omitted).
The sense of betrayal fostered by Anders will make for a very strained counsel-client relationship where the court refuses to grant the Anders motion. "In any case where counsel has unsuccessfully sought to withdraw on the basis that the appeal is frivolous and without merit he can find himself in a completely intolerable situation if required to thereafter pursue an appeal." State v. McKenney, 568 P. 2d 1213, 1214 (Idaho 1977) (per curiam).
The Anders Court wants appointed counsel to act like advocates as opposed to amicus curiae when attempting to withdraw from an appeal. See Anders, supra, 386 U. S., at 744. "This is a nonsequitor, however, for if it is assumed that the appeal was in fact without merit, then no lawyer would have a license to press it forward, as amicus or otherwise." 1 Hazard & Hodes, supra, The Law of Lawyering, at 567. If anything, a conscientious Anders counsel acts more as amicus than advocate. The brief in McCoy that spelled out the weakness of the client's position is the nonpartisan advocacy one could expect from amicus. In any situation outside of Anders, however, such a brief from an advocate for a client would be malpractice and would subject counsel to discipline.
Just as this Court cannot use judicial fiat to avoid the economic realities, see Part I, supra, Anders cannot avoid its ethical problem. Fairness to the countless diligent and ethical appointed appellate counsel and their clients requires this Court to address the ethical dilemma posed by Anders.
Anders requires the brief accompanying the motion to withdraw to mention "anything in the record that might arguably support the appeal." 386 U. S., at 744. This cannot mean every conceivable issue; the universe of frivolous issues is vast and may be unlimited. This interpretation is supported by Anders' qualifying phrase "might arguably." These issues must thus come from a special subset of the set of all frivolous appeals; they are frivolous, but sufficiently less frivolous than other issues to warrant bringing to the attention of the Court. This is an unfair and impossibly impractical distinction.
"In effect, then, the Court must assume three categories of issues: (1) issues that are wholly frivolous and that do not have to be considered further by either counsel or court; (2) issues that are not substantial enough to warrant concluding that the appeal is anything but wholly frivolous but that nonetheless for, presumably, some other reason warrant discussion in an Anders brief accompanying a motion to withdraw; and (3) issues that arguably support a nonfrivolous appeal and whose presence in the record triggers an obligation on the part of the appellate court to appoint new counsel to argue those points fully.
"Such hair-splitting among possible arguments hardly describes an operable test." Wolfram, supra, Modern Legal Ethics, at 817-818.
"Frivolous" cannot be defined with great precision. "Frivolousness, like madness and obscenity, is more readily recognized than cogently defined." Hermann, supra, Frivolous Criminal Appeals, 47 N. Y. U. L. Rev., at 705 (footnote omitted). This Court has never given any precise definition of "frivolous." Anders tosses around concepts such as "wholly frivolous," "arguably support the appeal," and "arguable on the merits" without giving any further definition to these open-ended terms. See Anders, 386 U. S., at 744. The closest this Court has come to fleshing out "frivolous" came in McCoy v. Court of Appeals of Wisconsin, 486 U. S. 426 (1988).
"The terms 'wholly frivolous' and 'without merit' are often used interchangeably in the Anders-brief context. Whatever term is used to describe the conclusion an attorney must reach as to the appeal before 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." Id., at 438-439, n. 10.
This is hardly encouraging to an appointed counsel attempting to split Anders' hairs. The reality is that every conclusion that an appeal is frivolous must be taken from the context of that particular case. "Thus the 'wholly frivolous' concept is not defined by abstract standards, but rather in terms of counsel's determination after a conscientious consideration of the record." Nickols v. Gagnon, 454 F. 2d 467, 471 (CA7 1971) (Stevens, J.). Without the guidance of bright-lines or clear definitions, counsel's task is unduly burdensome, if not impossible.
Anders' imprecision will also place undue burdens on the counsel who feels that there are not even any potentially arguable issues. Briefing an unquestionably frivolous issue would facially comply with Anders at the risk of concealing "a substantial problem in a record . . . ." Id., at 472. Yet a brief containing no arguable issues runs a substantial risk of being labeled as not complying with Anders.
Anders' unguided distinction between the merely frivolous and the frivolous, but potentially arguable, reinforces the two-faced nature of this brief.
"As a practical matter, however, the brief required in order to withdraw will be nearly impossible to write. Counsel must explain why her client's appeal is frivolous, while simultaneously pointing to all errors in the record mandating reversal of her client's conviction." Pritchard, Auctioning Justice: Legal and Market Mechanisms for Allocating Criminal Appellate Counsel, 34 Am. Crim. L. Rev. 1161, 1166 (1997).
There is a further problem with Anders' requirement that counsel point out some potentially arguable issues.
"As the [Anders] dissenters rightly pointed out (and as frustrated appellate counsel have learned over the years) if there is an argument of that quality revealed in the record then the appeal is by definition not frivolous. Anders briefs therefore necessarily entail legal submissions that counsel regards as frivolous." 1 Hazard & Hodes, supra, The Law of Lawyering §3.1:304, at 567 (2d ed. 1996 Supp.).
Confronted with an impossible distinction, and the unpleasant task of satisfying the Anders "ceremony," see Wolfram, supra, at 817, many lawyers will simply refuse to file such briefs and instead file frivolous appeals. See Pritchard, supra, 34 Am. Crim. L. Rev., at 1166-1167; Hermann, supra, 47 N. Y. U. L. Rev., at 715-716. In this context, a decision to file a frivolous appeal is an unfortunately rational decision to avoid Anders.
Under Anders, before an appellate court may grant appointed counsel's motion to withdraw, it must "decide whether the case is wholly frivolous" only "after a full examination of all the proceedings." Anders, 386 U. S., at 744. Few duties, if any, can be less appealing to the intermediate appellate courts than searching the entire record to find the rare nonfrivolous needle in a haystack of frivolous claims. Cf. Brown v. Allen, 344 U. S. 443, 537 (1953) (Jackson, J., concurring). Just as the conscientious Anders brief can require the work of ten merit briefs, see Pengilly, supra, 9 Crim. Just. J., at 62-63, the detailed review of the entire record required by Anders places a disproportionate share of the court's scarce resources on presumptively frivolous appeals.
It is not the standard practice of the appellate courts to comb the record for all possible issues and raise unmentioned issues for argument on the merits. An issue defendant failed to raise on the first appeal in state court may be procedurally barred under federal habeas corpus. See Murray v. Carrier, 477 U. S. 478, 490-491 (1986). It is not typical for courts to address unraised errors in criminal appeals, and any attempt to do so would further burden them. See Warner, supra, 23 Fla. St. U. L. Rev., at 661.
This presents an equal protection problem that some consider to be the greatest difficulty posed by Anders. The detailed court review and the sua sponte raising of arguable issues gives Anders defendants greater privileges than either nonindigent defendants or the indigent defendants whose counsel submit a brief on the merits. See id., at 641-642. As Anders is substantially based on treating the indigent fairly in comparison to the nonindigent defendant, see, e.g., Anders, supra, 386 U. S., at 457; McCoy, supra, 486 U. S., at 438, this failure of Anders is particularly disturbing. See Warner, supra, 23 Fla. St. U. L. Rev., at 662.
The injustice of this inequality is compounded by the uniquely undeserving recipients of Anders' largesse. Anders protects a class of litigants who are overwhelmingly validly convicted of crimes. Reversals after a court rejects an Anders motion occur "[e]xceedingly rarely . . . ." Wolfram, supra, at 817, n. 35. Instead of minimizing resources on this undeserving many, Anders wastes judicial and attorney time on them at the expense of the deserving few. Indeed, some state courts have found hearing frivolous appeals on the merits to be a more efficient use of their resources than utilizing the cumbersome Anders procedure. See, e.g., State v. McKenney, 568 P. 2d 1213, 1214 (Idaho 1977) (per curiam); Commonwealth v. Moffett, 418 N. E. 2d 585, 590-591 (Mass. 1981).
Under Anders the only party who does not bear the cost of frivolous appeals is the indigent defendant who wishes to press the frivolous claims. This creates an economic "tragedy of the commons" where the frivolous indigent defendants consume more resources than their cause warrants. See Pritchard, supra, 34 Am. Crim. L. Rev., at 1167-1168. Disposing of frivolous claims is important; unfortunately Anders transferred responsibility to the wrong actor. It is the attorney's role to act as gatekeeper against frivolous litigation; responsibility for identifying and disposing of such claims should be left to counsel, who are better equipped to fulfill this function than the courts. Huguley v. State, 324 S. E. 2d 729, 731 (Ga. 1985).
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