¶1concurring.
¶2I agree with the Court’s disposition based on the current text of Rule 3:22-6(d). Despite what might have been honorable inten*20tions and a thorough investigation of defendant’s claims, PCR counsel breached the rule’s clear mandate. As a result, defendant is entitled to the relief sought.
¶3I write separately to address what remains at the center of this case: the Hobson’s choice faced by a defense lawyer who honestly views a client’s PCR petition to be so lacking in merit that it constitutes the functional equivalent of a fraud on the court. Compare R. 3:22-6(d) (requiring PCR counsel to advance arguments, “notwithstanding that counsel deems them without merit”) with RPC 3.1 (directing that counsel “shall not bring or defend a proceeding, nor assert or controvert an issue therein unless the lawyer knows or reasonably believes that there is a basis for doing so that is not frivolous”). The Court should consider adopting procedures similar to those found at the federal level to enable defense counsel to discharge their obligations to their clients within the broader boundaries of our professional ethics rules.
¶4In Anders v. California, the United States Supreme Court designed a procedure that it deemed constitutionally permissible for preserving a defendant’s interests and upholding an attorney’s professional responsibilities:
[Counsel’s] role as advocate requires that he support his client’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.
[386 U.S. 738, 744, 87 S.Ct. 1396,1400, 18 L.Ed.2d 493, 498 (1967).]
¶5The federal circuits accept Anders briefs. See 1st Cir. R. 46.6(a)(4); 3d Cir. R. 109.2(a); 6th Cir. R. 101(f)(3); 7th Cir. R. 51(b); 8th Cir. Internal Operating Procedure 11(C)(1); 9th Cir. R. 4-1 (c)(6); 10th Cir. R. 46.4(B); and 11th Cir. R. 27-1(a)(8); see *21also United States v. Clark, 284 F.3d 563, 564 (5th Cir.2002) (recounting 1994 implementation of Anders procedure); United States v. Ubaldo Hernandez, 271 F.3d 78, 79 (2d Cir.2001) (granting defense counsel’s motion, filed via Anders brief, to withdraw), cert. denied, 534 U.S. 1166, 122 S.Ct. 1183, 152 L.Ed.2d 124 (2002); United States v. Wilkerson, 84 F.3d 692, 697 (4th Cir.1996) (implementing Anders procedure), cert. denied, 522 U.S. 934, 118 S.Ct. 341,139 L.Ed.2d 264 (1997).
¶6A PCR petition “is the state analogue to the federal writ of habeas corpus.” State v. McQuaid, 147 N.J. 464, 482, 688 A.2d 584 (1997). Along those lines, federal courts have accepted Anders briefs from counsel in civil and criminal habeas proceedings that are akin to petitions for post-conviction relief. See, e.g., Beck v. Gramley, No. 95C 632, 1999 WL 641648, at *1 (7th Cir. Aug.20, 1999) (requiring and accepting Anders brief in criminal habeas proceeding); Dinkins v. State of Alabama, 526 F.2d 1268, 1269 (5th Cir.) (observing that “[although counsel serves in this civil habeas corpus proceeding by a discretionary appointment of this court ..., it is appropriate to apply the principles enunciated in Anders to determine whether counsel should be allowed to withdraw”), cert. denied, 429 U.S. 842, 97 S.Ct. 119, 50 L.Ed.2d 112 (1976); United States ex rel. Banks v. Henderson, 514 F.2d 1000 (2d Cir.1975) (granting counsel’s Anders petition to withdraw from defendant’s planned appeal from denial of habeas review).
¶7Many but not all states have adopted the Anders procedures for state proceedings. Compare People v. Stokes, 95 N.Y.2d 633, 722 N.Y.S.2d 217, 744 N.E.2d 1153, 1155 (2001)(observing that “the procedures adopted by New York courts closely parallel and are clearly modeled upon the procedure set forth by the Supreme Court in Anders ”) with In re Attorney’s Fees of Mohr, 97 Hawai'i 1, 32 P.3d 647, 653 (2001) (noting that “[i)t has been and continues to be the policy of this court not to permit Anders briefs”). According to one recent decision, “[i]t is clear that the great majority of courts employ a procedure similar to that described in Anders”. State v. Korth, 650 N.W.2d 528, 533 (S.D.2002).
¶8*22Statistics collected by one legal commentator show that Anders briefs comprise up to a third of the criminal case loads of the states that allow them. Martha C. Warner, Anders in the Fifty States: Some Appellants’ Equal Protection is More Equal than Others, 23 Fla. St. U.L.Rev. 625, 643 (1996). However,
survey responses do not indicate that following the dictates of Anders is generally more time-consuming than the average criminal appeal. Forty-nine percent of the courts reported that Anders review takes less time than the average criminal appeal, while forty-four percent indicated that Anders cases take about the same time to review as the average criminal case. Only seven percent indicated that their Anders review takes more time than the average appeal.
[M at 656.]
¶9Reasonable minds may differ concerning the appropriateness of an Anders-Vike process for either direct appeals or for PGR petitions. Mindful of those differences I do not propose that we adopt such procedures now. Rather, this case affords the Criminal Practice Committee or some other committee of the Court the opportunity to consider the subject. Anders ultimately derives from the system’s need for candid, independent, and professional counsel. It seeks to balance those needs alongside a defendant’s significant interests in this setting. A respectful relationship between the bench and bar warrants at least that we study this issue as part of the Court’s regular rules cycle.
¶10In sum, this appeal implicates aspects of Rule 3:22 — 6(d) that, as noted in its opinion, the Court last considered in 1967. Given the passage of time, I would direct an appropriate committee to review the rule for possible modification or revision. If not a rule that mirrors Anders, perhaps some variation of Anders might be deemed appropriate. If, on the other hand, the committee returns with a recommendation that the Court retain the rule in its present form, then at least we would be provided with an updated administrative record on which to base a final decision.
¶11Opposed — None.