The Secret Right to Hybrid Representation

Chas Rutledge

I learned something today. Unlike its federal counterpart the Kentucky Constitution entitles defendants to hybrid representation, a limited waiver of counsel in which the defendant acts as co-counsel with a licensed attorney. A recent defendant attempted to exercise this right by filing a motion against the wishes of his attorney. But in the words of the Kentucky Supreme Court the man was “mislead”:

Counsel explained that it was his ethical duty not to file the motions because he believed they were meritless. . . . Later in the hearing, the trial judge reiterated that Appellant's “only other choice,” if he wanted to file a pro se motion, was to represent himself. Appellant then offered the qualified response that “with this hearing” and “with this motion” he would take his chances representing himself. . . . Appellant's counsel interjected, informing the judge that Appellant could represent himself for purposes of this motion only. The judge responded that this was not an option and . . . [the] decision would mean that “you're going to be going all through this case without counsel.”

These false words of course violated the Kentucky Constitution, even if irrelevant rifts between client and counsel also contributed to the client’s decision to proceed pro se. Yet courts are interestingly not required to inform defendants of their right to hybrid representation. We might presume that this results in fewer frivolous motions. But if nobody knows about it then what's the point? Lawyers have an ethical duty to follow their clients’ objectives. True, the lawyer can choose a different strategy than the client desires. But if I have a client who, after counsel, insists on filing a motion, then I’m filing the motion, unless of course it conflicts with other ethical duties—the restrictions on filing frivolous actions, for example. After all, the alternative is ethically informing the client of his right to “hybrid representation” and having him file the motion himself. Either way, the lawyer loses and the client wins. Right?