¶ 21. concurring, in part, and dissenting, in part. Although I greatly doubt that petitioner’s case on appeal is frivolous under the standard we just announced in In re S.C., 2014 VT 7, ¶¶ 8-9, 195 Vt. 415, 88 A.3d 1220, as discussed below, I acknowledge that 13 V.S.A. § 5233(a)(3), as interpreted in In re Bailey, 2009 VT 122, 187 Vt. 176, 992 A.2d 276, requires that we grant counsel’s motion to withdraw, and I concur in that part of the majority’s order. As requested by withdrawing counsel, however, I would rule that petitioner is entitled to replacement counsel and direct the Defender General to supply and fund such counsel. On the latter point, I dissent from the majority decision. Three factors prompt my dissent.
*271¶ 22. First, I am concerned about the history of this case up until the Defender General’s letter refusing to fund further representation. We are reviewing a summary judgment decision of the superior court. Petitioner filed a PCR petition in that court which alleged ineffective assistance of counsel in his criminal case because his lawyers induced him to reject a plea bargain for a much lower sentence “by misrepresenting the potential maximum exposure petitioner was facing at trial.” He went on to allege that his counsel told him that he faced a maximum exposure at trial of twenty-five years, which was essentially the maximum in the plea bargain offer, but he was sentenced instead to a maximum sentence of eighty-five years.
¶ 23. On July 18, 2012, the superior court notified the Prisoners’ Rights Office of the Defender General of the court’s intention to appoint the Prisoners’ Rights Office to represent petitioner, with the following statement:
Please review and advise this Court within two weeks from the above date whether your office has a conflict of interest.
If there is no response from your office within this time period, an order will be prepared for the Judge’s signature to appoint the Prisoners’ Rights Office as counsel for the petitioner in this matter.
There was no response, and Judge Teachout on August 9th appointed a particular public defender in the Prisoners’ Rights Office to represent petitioner in that court. The appointed public defender proceeded to provide representation.
¶ 24. After a skirmish over venue that was resolved by stipulation, the State moved to dismiss the petition under 13 V.S.A. § 7134 because it was “a second or successive motion for similar relief on behalf of the same prisoner.” The public defender answered that the case did not fit within the statute because the theory on which this petition was based had not been raised in earlier PCR petitions because it was not available at the time of the earlier petitions. The State responded that the theory had always been available, and the Supreme Court precedent on which petitioner relied, Lafler v. Cooper, _U.S. _, 132 S. Ct. 1376 (2012), did not establish any new rights or state a new constitutional rule.
*272¶ 25. Approximately two months after the State filed its response, petitioner requested a status conference because the public defender would not respond to the State’s response filing. Whatever the reason, the public defender never withdrew from representation. The court issued its decision on the motion to dismiss before it received the motion for a status conference, and the court denied the latter motion for that reason. Thirteen days after the decision was issued, the public defender filed a notice of appeal. Thereafter, the public defender filed a docketing statement in this Court, although conflict counsel then entered notice of appearance. In a letter filed by petitioner, the public defender said she first thought there were no grounds for appeal, but “I changed my opinion and filed a notice of appeal for you.” She added that, since filing the notice, the case had been assigned to conflict counsel, as she had discovered the Defender General’s office had a conflict of interest.
¶ 26. Ironically, conflict counsel withdrew because her firm had done a merits review for the Defender General on petitioner’s prior, and different, ineffective-assistance-of-counsel claim in his first PCR proceeding. The firm had concluded that the claims had no merit. Counsel concluded that the negative merits review created a conflict of interest. The case then went to attorney Michael Rose.
¶ 27. The second factor is the grounds for the decision of the Defender General. His letter states that “[w]e have advised him that his appeal issues lack merit, and an attorney retained to review his case agrees with that determination.” It goes on to state that the Defender General will not accept any further appointment. As the majority decides, this letter means that the Defender General will not fund any representation of petitioner on this claim.
¶ 28. Despite a number of decisions about the withdrawal of publicly funded counsel in PCR cases, we have never examined the compliance of the Defender General’s evaluation procedure with the law. This is partly because the Defender General has never disclosed how the procedure works, relying only on short, cryptic letters conveying refusal to fund further representation. It is also because the statute relied upon, 13 V.S.A. § 5233(a)(3), relates to the effect of the evaluation of a case by “the attorney” *273providing representation and does not authorize any review procedure by the Defender General.4
¶ 29. The third factor is the standard imposed by 13 V.S.A. § 5233(a)(3). The standard is taken from Vermont’s Rules of Professional Conduct 3.1 and Rules of Civil Procedure 11(b)(2). We defined the meaning of this standard in the recent decision in In re S.C., 2014 VT 7, ¶ 8:
Contrary to counsel’s suggestion, the assertion of a claim that an attorney believes to be without merit or lacking any meaningful chance of success does not render an appeal “frivolous” or unethical. As the official comment to Rule 3.1 explains, an argument “is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail.” V.R.Pr.C. 3.1 cmt. [2]; ... Of course, a lawyer’s duty of candor continues to require that he or she “not knowingly . . . make a false statement of fact or law to a tribunal,” offer false evidence, or fail to disclose a material fact or controlling legal authority. V.R.Pr.C. 3.3(a). A good faith argument, however, may be predicated on whatever pertinent facts and controlling law are most favorable to the client without violating these duties, and certainly “need not conclude with the lawyer’s assertion that [his or her] client is entitled to prevail.”
(additional citations omitted). We summarized that because frivolous claims arise only in the “rare case,” the risk that an appointed lawyer will commit an ethical violation is “small.” Id.
¶ 30. I start with the most obvious and fundamental reason why I cannot vote to let the Defender General refuse to fund further representation. It is clear even from the language of his terse letter that the review process is using a standard of merit, not frivolity, in making the review decisions. That is the ground explicitly stated in the letter.
¶ 31. In this case, we know more about the review decision than the Defender General’s letter discloses. Petitioner shared with this Court the letter from the independent lawyer evaluating petition*274er’s appeal.5 He concluded: “Under these circumstances, Mr. Bruyette could not sustain his burden under In re Laws, and the trial court properly granted the State’s motion to dismiss. Any attempts to reverse this ruling on appeal would inevitably prove fruitless.” I would paraphrase the letter as saying that the trial court decision is right and it will not be reversed on appeal. This is clearly not the standard of frivolity as explained in In re S.C., 2014 VT 7, ¶ 8. Under this standard, we can expect frequent refusals to fund representation to continue and not in the “rare case” as stated in S.C. Thus, there is no support for the Defender General’s decision not to fund further representation.
¶ 32. The majority has adopted a “magic words” standard for affirming the Defender General’s decision not to fund representation in this and other cases — if the Defender General cites to 13 V.S.A. § 5233 and Rule of Professional Conduct 3.1, it is irrelevant whether the petitioner’s case is actually frivolous, and irrelevant whether the Defender General states that he acted under a standard not consistent with either the statute or Rule 3.1. Under the majority’s review standard, we will always “infer” compliance with the law from the boilerplate statement despite the clear evidence of noncompliance. Under the majority’s review standard, if the petitioner provided us a letter from independent counsel concluding that petitioner’s case has merit, the Defender General’s magic words would prevail to deny petitioner counsel.
¶ 33. The majority states that it is deciding this case without deciding whether “an assertion that a case ‘lacks merit’ would, on its own, be sufficient to support a motion for leave to withdraw publicly funded counsel pursuant to 13 V.S.A. § 5233.” Ante, ¶ 18. This is really an assertion that it does not matter whether a determination that a case lacks merit is enough under the statute because the boilerplate magic words will always control making the actual standard used irrelevant.
¶ 34. The majority states that its review standard is required by the statute and by our decision in Bailey. Neither supports the decision. The statute bases the right to counsel on an attorney’s consideration that petitioner’s position is based on “a nonfrivolous argument for the extension, modification, or reversal of existing *275law or the establishment of new law.” 13 V.S.A. § 5233(a)(3). In fact, the public defender who took the appeal found a nonfrivolous ground for petitioner’s case and the review lawyer was either never asked to review petitioner’s case under this standard or failed to do so. There is nothing in the statute to suggest that no attorney has to have the opinion stated in the statute and the only requirement is that the Defender General cite the statute.
¶ 35. Bailey decided what the withdrawing lawyer must do, and I agree that the withdrawing lawyer here complied with the Bailey requirements. Bailey stated explicitly that it was not evaluating “the validity of the Defender’s screening process,” 2009 VT 122, ¶ 17, but the majority has applied it in exactly that way here. Bailey does not endorse the magic words standard to deny all legal representation to a PCR plaintiff.
¶ 36. I find no solace in the majority’s understanding of the evaluation process or our opportunity to reassign a case to the Defender General for reevaluation. If we were going to do the latter, the first ease in which it should occur is this one. Both the letter from the review lawyer and the letter from the Defender General indicate that they used the wrong standard.6 If we wanted to be sure that the right standard, consistent with S.C., was employed, we would reassign the case for a new evaluation under the S.C. standard.7 The majority decision to rely upon the boilerplate magic words, which are present in every letter from the Defender General denying funding of counsel, is also a decision that the grounds for reassignment will not appear. Of course, even if we were to reassign the Defender General, there is no right to a reevaluation, or any assurance that if the Defender General chooses to reevaluate, the process will be any different from the first time.
*276¶ 37. I add that the majority’s understanding of the review process is apparently wrong. While there were three lawyers who gave opinions in this case, one — the public defender — found petitioner’s case to be not frivolous. I continue to believe that the secrecy of the process, and the absence of any regulation or oversight, undercuts any assurance of its reliability.
¶ 38. I have a second reason for my conclusion that we should not accept the Defender General’s refusal to fund future representation. Although the issue before the superior court was identical to that before us, and we face the issue with a de novo standard of review, the public defender did not assert that representation in the superior court would be inconsistent with 13 V.S.A. § 5233(a)(3) and, in fact, provided that representation. After receiving an adverse decision, the public defender filed a notice of appeal explicitly stating that she found merit to the appeal. Only because of the discovery of a conflict of interest not involving the assigned public defender did the public defender have to withdraw from representation in the appeal.8
¶ 39. To the extent there is any ethical or Civil Rule 11 requirement that the lawyer not provide representation because the petitioner’s position is frivolous, that requirement applied to the public defender. It was particularly applicable because the public defender not only provided representation but filed the notice of appeal. I have concluded before that once the Defender General or a public defender embarks on representation without refusing that representation or withdrawing under § 5233(a)(3), they have waived their right to claim that the client’s position is frivolous. See In re Crannell, 2012 VT 85, ¶¶ 20-21, 192 Vt. 406, 60 A.3d 632 (Dooley, J., concurring). That policy must apply to filing a notice of appeal. When a lawyer withdraws in midstream, that lawyer does harm to the client. In this case, all the appeal lawyer must do is resubmit the memorandum of law presented to *277the trial court in the form of a brief to this Court, hopefully with additional argument as to why the trial court decided the case the wrong way. I am confident that the Defender General can find a lawyer who can provide that representation.
¶ 40. These facts raise additional questions as to whether the Defender General’s review process in this case, whatever it is, complies with the statute. Section 5233 provides that the petitioner is entitled to representation unless the lawyer who represents the petitioner determines that the case is frivolous. In fact, the only lawyer who actually extended representation to petitioner was the public defender. As conflict counsel, Michael Rose may have become counsel of record but he never provided any legal services to petitioner. The independent review lawyer never represented petitioner. To the extent the statute has any authorization for the Defender General to refuse representation in the future, I think he is bound by the opinion of his public defender, expressed in both words and deeds, that petitioner’s case is not frivolous.
¶ 41. In summary, I join the decision to allow Michael Rose to withdraw from continuing representation of petitioner. I dissent from the holding to accept the Defender General’s decision to refuse to appoint new counsel to replace him.
The Defender General’s website contains many forms, including a form to apply for a public defender and a PCR form. Nowhere does it mention the Defender General’s review process or set out the procedures to implement the policy. Office of the Defender General, http://defgen.vermont.gov/ (last visited Apr. 21, 2014).
According to petitioner’s filing, the public defender sent the evaluation to petitioner, who then sent it to us. The Defender General’s letter says the case was evaluated by “an attorney retained to review [the] case.” It is clear that the review cited in the letter is the review described in the text.
The majority decision implies that the Defender General has made a personal decision that the case is frivolous. Nothing in the various filings in the cases involving this statute, or in the Vermont Bar Journal article cited by the majority, ante, ¶ 14, has ever suggested that the Defender General made a personal decision that petitioner’s case is frivolous or that the Defender General would personally breach the Rules of Professional Conduct by extending representation to petitioner. The decision is actually made by others and implemented by the Defender General.
We should also require the Defender General to send out to all counsel assigned in PCR cases, and to reviewing counsel, a communication including the S.C. decision and directing that they follow it.
While I would not rule, in this case, that the Defender General cannot determine whether to fund an appeal when he could not represent the petitioner because of a conflict of interest, I do not rule that out on a more complete record.
I do find relevant, however, that the Defender General failed to identify the conflict of interest that precluded representation of petitioner despite being directed to do a conflict check by the Rutland Superior Court staff. If the Prisoners’ Rights Office had acted diligently, the representation question could have been resolved in the trial court. It is part of the reason that I would rule that the Defender General should be precluded from refusing representation now.