(dissenting). Our court, rule requiring an appointed appellate defense lawyer in a criminal case to explain in a no-merit report the weaknesses in the client’s appeal contravenes the Anders decision of the United States Supreme Court, complicates the already complex ethical dilemma faced by an appointed defense lawyer who decides that an appeal of the client’s case would be frivolous, and is unnecessary to achieve the purposes which the majority believes justify the imposition of the requirement. Because I believe that our rule violates the defendant’s sixth amendment right to effective assistance of counsel, and because I believe this court should respond by commissioning a study of a court rule when, as in this case, a challenge to a court rule reveals flaws in the rule, I dissent.
In Anders v. California, 386 U.S. 738 (1967), the United States Supreme Court undertook the difficult task of reconciling the professional and personal integrity of appointed appellate defense counsel with the constitutional right of criminal defendants to the assistance of counsel. ABA Standards Relating to the Defense Function, sec. 4-8.3, Commentary (2d ed. 1980). The Court achieved this reconciliation by providing that counsel convinced of the frivolousness of a client’s appeal may request to withdraw from the case by following certain procedures, including filing a brief with the court that identifies "anything in the record that might arguably support the appeal.” Anders appears to rest on the distinction between complete frivolity and absence of merit, the former justifying withdrawal, the latter not justifying withdrawal. But see Cleghorn v. State, 55 Wis. 2d 466, 475, *105198 N.W.2d 577 (1972). Anders has been criticized as forcing appointed appellate defense attorneys to "brief the unbriefable,” because a defense attorney who could find something in the record arguably supporting an appeal would not request to withdraw in the first place. ABA Standards Relating to the Defense Function, sec. 4-8.3, Commentary.
The Anders decision has drawn more than its share of criticism from courts, commentators and practitioners. Courts have interpreted Anders in a wide variety of ways and have adopted alternate mechanisms for dealing with the difficult dilemma at the heart of the case. See, e.g., State v. Horine, 64 Or. App. 532, 669 P.2d 797 (Ct. App. 1983); State v. McKenney, 98 Idaho 551, 568 P.2d 1213 (1977); People v. Wende, 25 Cal. 3d 436, 158 Cal. Rptr. 839, 600 P.2d 1071 (1979). Commentators have found little that pleases them with the decision. See, e.g., Hermann, Frivolous Criminal Appeals, 47 N.Y.U.L. Rev. 701 (1972); Pengilly, Never Cry Anders: The Ethical Dilemma of Counsel Appointed to Pursue a Frivolous Criminal Appeal, 9 Crim. Just. J. 45 (1986). Finally, practitioners find the Anders procedure either unworkable or distasteful or both.
Nevertheless, Anders is, as the majority points out, the "touchstone” of analysis in this case. Anders requires an appointed appellate defense attorney to act as an advocate even as he or she requests to withdraw from a case. The majority asserts that the discussion requirement in the court rule at issue in this case keeps appointed appellate defense counsel in the role of advocate because it insures "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.” *106Opinion at page 101. It is not, however, the requirement that counsel search the record and research the law that the petitioner objects to in this case, but rather the requirement that counsel then place before the court any arguments that he or she has discovered which militate against the client's cause.
The United States Supreme Court specifically noted that it did not intend to "force appointed counsel to brief his case against his client.” Defense counsel should be the client’s advocate, not adversary. Anders, 386 U.S. at 745.
The majority explains that appointed appellate defense counsel’s inclusion of arguments against the defendant is necessary to put the court on notice that the arguments in favor of the client are frivolous and to assist the court to make a correct decision about the potential merits of the appeal. Opinion at pages 100-101, 103. As the court recognized in Anders, 386 U.S. at 745, however, appointed appellate defense counsel provides sufficient assistance to the court simply by pointing out the possible arguments for the client. Appointed appellate criminal defense counsel's request to withdraw in itself puts the court on notice that counsel considers the arguments in the no-merit brief frivolous. Once raised, frivolous arguments by their very nature should not be difficult for a court to evaluate on its own without counsel supplying case authorities or factual references which militate against the appeal. Consequently, I conclude that there is no need to require defense counsel to assist the court by briefing the case against the client.
Counsel’s filing a brief setting forth arguments against defendant’s position is a task that benefits the court but not the client. Accordingly, such a task is *107more properly assigned to an amicus curiae than to an advocate. The Anders court condemned procedures that place appointed appellate defense counsel in the role of amicus curiae rather than in the role of advocate for the defendant. 386 U.S. at 744. The Wisconsin requirement that appointed appellate defense counsel who files a no-merit brief must discuss therein the reasons why the appeal lacks merit violates the plain meaning and clear intent of Anders by transforming appointed appellate defense counsel from an advocate into an adversary or an amicus.
The disenchantment with our rule evidenced in this case and the widespread disenchantment with Anders indicate that the dilemma of appointed counsel who does not wish to prosecute a frivolous appeal deserves additional study to devise a solution that is more satisfactory to counsel yet is equally sensitive to the rights of indigent defendants, to the responsibilities of appointed counsel, and to the needs of the judicial system.
In its rulemaking capacity this court has the power to authorize a study of the rule and its effect on appointed appellate defense attorneys who feel that their clients’ appeals are frivolous but who nevertheless cannot dissuade their clients from prosecuting the appeals. Such a study is the kind of response that this court should consider when presented with a challenge that raises significant doubts concerning the wisdom of the rule, even if the constitutional arguments against the rule do not persuade the court. Thus, I believe that even if the majority is convinced the rule is constitutional, it should initiate a reconsideration of the rule.
Accordingly, I dissent.
*108I am authorized to state that CHIEF JUSTICE NATHAN S. HEFFERNAN and JUSTICE WILLIAM A. BABLITCH join in this dissent.