The Role of Defense Counsel in Ineffective Assistance of Counsel Claims

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1 The Role of Defense Counsel in Ineffective Assistance of Counsel Claims I. Every criminal defense lawyer will, at sometime or another, be challenged as ineffective it comes with the territory. It is natural to take ineffective assistance claims personally, but they should not be. Our clients have often been sentenced to long prison terms and, increasingly, to onerous conditions of supervision. What s more, jailhouse lawyers sometimes give former clients unreasonable expectations about the likelihood of success. This unfounded optimism is reinforced in cases where the client gets past summary dismissal and is appointed counsel. When one finds himself or herself the subject of an ineffective assistance of counsel claim, it is important to keep a few points in mind. A. Ineffective assistance claims can be surreal 1. The criminal defense lawyer is a witness in the proceeding, not a party; 2. The proceeding is a hybrid of criminal and civil proceedings; (a) The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules. See, Rule 12, Rules Governing Section 2254 Proceedings. 3. The former client desperately needs your help but has a funny way of showing it with accusations of all manner of wrong doing ranging from ethical misconduct to incompetence. 4. Your former adversary, the prosecutor, suddenly becomes your best friend and will break his or her back extolling your virtues and legal acumen. 5. Your colleague and possibly good friend -- becomes a nemesis who gives voice to your former client s accusations of wrong doing.

2 6. A postconviction claim of ineffective assistance presents conflicting ethical standards. B. Try to view ineffective assistance claims as a challenge to the legitimacy of your former client s conviction and sentence and not as a judgment on your competence or culpability. II. The Mechanics of Ineffective Assistance of Counsel Claims A. A lawyer who is the subject of an ineffective assistance claim may, or may not, be ordered to respond to the former client s allegations. Under some circumstances, the lawyer may not even be made aware of the client s claims. 1. The clerk must promptly forward the motion to the judge who conducted the trial and imposed sentence. The judge... must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response or take other directed action. See, Rule 4, Rules Governing Section 2255 Proceedings. 2. The respondent i.e., the government is not required to file an answer unless a judge so orders. See, Rule 5, Rules Governing Section 2255 Proceedings. 3. A judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure. If necessary for effective discovery, the judge must appoint counsel. See, Rule 6, Rules Governing Section 2254 Proceedings. 4. A judge can direct the parties to expand the record by submitting additional materials. These can include letters predating the filing of the motion, documents, exhibits, and answers under oath to written interrogatories propounded by the judge. Affidavits can also be submitted and considered as part of the record. See, Rule 7, Rules Governing Section 2255 Proceedings.

3 5. A judge may order an evidentiary hearing. If an evidentiary hearing is warranted, the judge must appoint counsel. In 2255 proceedings, Rule 26.2(a)-(d) and (f) applies in the evidentiary hearing. See, Rule 8, Rules Governing Section 2255 Proceedings. (a) Under 2254(e)(2), a habeas petitioner who failed to develop the factual basis of her claim, is only entitled to an evidentiary hearing if: (i) the claim relies on a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court or (ii) the factual predicate for the claim could not have been discovered through due diligence and the facts underlying the claim establish by clear and convincing evidence that, but for constitutional error, no reasonable fact-finder would have found petitioner guilty. III. The Lawyer s Response to a Claim of Ineffective Assistance (A) Generally speaking, criminal defense lawyers respond to ineffective assistance claims in one of two ways: (1) Cooperate with the prosecution in an effort to defend their work; (2) Provide substantial assistance to postconviction counsel. IV. A Lawyer s Ethical Obligations to Former Clients (A) Duty of Confidentiality (1) A lawyer s duty to keep a client s secrets is inherent in the ethical rule of confidentiality, the attorney-client privilege, and the work product doctrine. (a) Rule 1.6 Mont. Rule Prof. Cond. governs a lawyer s duty of confidentiality, stating that [a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent or unless one of four exceptions apply. to establish a claim or defense in a controversy with the client... or to respond to allegations in any proceeding concerning the lawyer s representation of the client. to comply with the law or court order

4 (b) Rule 1.9 Mont. Rule Prof. Cond. governs a lawyer s duty to former clients. Under subsection ( c), a lawyer may not reveal information relating to a former client s representation except as these Rules would permit or require with respect to a client. ( c) Attorney-client privilege provides a testamentary privilege by which a lawyer may refuse to disclose or a client can prevent disclosure of communications. It only applies where a lawyer is called as a witness. See, Rule 501 Fed.R.Evid. (d) The work product doctrine protects from discovery an attorney s work relating to representation. It is defined as written work produced in anticipation of litigation, including its intangible equivalent in unwritten or oral form. (2) Exceptions to Duty of Confidentiality (a) A lawyer may reveal client information to establish a claim or defense in a controversy with the client... or to respond to allegations in any proceeding concerning the lawyer s representation of the client. disclosure only permitted to extent necessary to protect self interest and should be made in a manner that limits access to the information to the tribunal or other persons having a need to know a lawyer may not rummage through every file he has on that particular client... and publicize any confidential communication he comes across [that] may tend to impeach his former client. the probative value of the disclosed material must be great enough to outweigh the potential damage of disclosure exception for self-defense does not include protecting one s reputation (b) A lawyer may reveal client information to comply with a court order. but when faced with a subpoena or court order to turn over files or testify, a lawyer should make a good faith effort to limit her revelations to the extent reasonably necessary to protect confidentiality See, ABA Comm. on Ethics and Prof l Resp., Formal Op. 385 (1994)

5 a court order may supersede a lawyer s obligation of confidentiality under Rule 1.6, but this does not mean that the lawyer should be a passive bystander to attempts by a governmental agency or by any other person or entity for that matter, to examine her files or records. Id. (B) Duty to Provide Information to a Former Client (1) A lawyer is obligated to ensure his former client s interests are protected, not only by keeping his confidences, but also by providing information, which is considered client property, to the client. (a) Rule 1.16 Mont. Rule Prof. Cond. requires that a lawyer, upon termination of representation, take steps to the extent reasonably practicable to protect a client s interests, such as... surrendering papers and property to which the client is entitled. not absolute, a lawyer is entitled to retain... materials personal to the lawyer or created or intended for internal use by the lawyer. V. Proper Response to Ineffective Assistance of Counsel Claims A. Lawyers ought to be aware of their ethical obligations and should take care not to harm their former client. These duties include, but are not necessarily limited to: (1) Maintain the records of the case in a manner that will inform postconviction counsel of all significant aspects of the litigation. (2) Provide the client s files, as well as information regarding the case, to postconviction counsel. (3) Protect the client s confidences and seek to limit disclosure of confidential material. Disclosure adverse to the client s interests should be no greater than reasonably necessary to accomplish the purpose of responding to the allegations. (4) Provide postconviction counsel with at least a minimal degree of assistance to help insure the former client s interests are protected.

6 (5) Restrict informal contacts with the prosecution. The best course of action is to avoid conversations with the prosecutor, with the limited exception of procedural discussions involving matters such as scheduling and the like.

*Rule 1.4(a) *Rule 1.16(a) *Rule 1.16(a)(2) *Rule 1.16(b) *Rule 3.3 *DR7-102(A)(4) *DR7-102(A)(6)

*Rule 1.4(a) *Rule 1.16(a) *Rule 1.16(a)(2) *Rule 1.16(b) *Rule 3.3 *DR7-102(A)(4) *DR7-102(A)(6) NEW HAMPSHIRE BAR ASSOCIATION Ethics Committee Formal Opinion 1993-94/7 Candor to Tribunal: Use of Questionable Evidence In Criminal Defense January 27, 1994 RULE REFERENCES: *Rule 1.2 *Rule 1.2(a) *Rule

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