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In Commonwealth v. Moffett, 383 Mass. 201 (1981), the Supreme Judicial Court established principles and procedures regarding appointed counsel's duty to represent an indigent criminal defendant on appeal when counsel believes the appeal, or particular arguments the defendant seeks to be included in the appeal, to be frivolous. These procedures, outlined below, are based on the following principles:
Appointed counsel is not permitted to withdraw representation solely because he/she believes that the appeal is frivolous or otherwise lacks merit. Moffett, 383 Mass. at 207.
Even if counsel has doubts about the merits of an appeal, counsel must prepare and submit a brief arguing any issues that may have some merit. Id. at 216. See Supreme Judicial Court Rule 3:07, Massachusetts Rules of Professional Conduct (Rule 3.1 defines an issue as not frivolous where there is a "good faith argument for an extension, modification, or reversal of existing law").
Counsel is precluded from advancing groundless contentions. Moffett, at 207.
Appointed counsel must support the defendant's appeal to the fullest extent possible. Id. at 208.
The following procedural guidelines are to be followed by appointed counsel when a client's appeal includes issues that counsel believes to be frivolous ("Moffett issues"):
"I, [name of attorney], have been assigned as counsel on appeal for the defendant. Argument [x] has been included at the defendant's insistence. In accordance with the guidelines outlined in Commonwealth v. Moffett, 383 Mass. 201 (1981), I find it necessary to dissociate myself from Argument [x]."
"I, [name of attorney], have been assigned as counsel on appeal for the defendant. This brief has been filed at the insistence of the defendant. In accordance with the guidelines outlined in Commonwealth v. Moffett, 383 Mass. 201 (1981), I find it necessary to dissociate myself from this brief."
"I, [name of attorney], have been assigned as counsel on appeal for the defendant. The sole argument raised in this brief has been made at the insistence of the defendant. In accordance with the guidelines outlined in Commonwealth v. Moffett, 383 Mass. 201 (1981), I find it necessary to dissociate myself from this argument."
The Moffett decision does not apply to appointed counsel representing a defendant in a motion for new trial because Moffett is premised on the right to counsel, and there is no right to counsel in connection with a new trial motion. See Commonwealth v. Conceicao, 388 Mass. 255, 261 (1983). Accordingly, appointed counsel in these circumstances can select which issues to litigate, and, if the client disagrees and insists on other issues being included, s/he may have to choose between forgoing some issues or proceeding pro se.
The procedural guidelines outlined in Section A. above must be followed in order for a defendant to file a Moffett brief. If a court-appointed attorney files a brief that does not contain a Moffett preface, then the defendant is precluded from filing a supplemental brief, unless he/she, via motion filed by counsel, seeks leave of the court to file such a brief, and the court allows the motion. Supplemental pro se briefs must comply with the formatting requirements in Mass.R.A.P. If the Commonwealth has already filed its brief, upon request it will be granted additional time to file a supplemental brief or memorandum in response to any supplemental pro se brief.
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