TACDL’s 2002 Death Penalty Conference

Team Defense: The Basics & Beyond

Ethics: One Case, One Client

Nashville, Tennessee

April 27, 2002

8:30 a.m. B 9:30 a.m.

David M. Siegel

New England School of Law

154 Stuart Street

Boston, MA 02116

(617) 422-7270 / (617) 422-7453 (fax)

dsiegel@fac.nesl.edu

NOTE: As you doubtless know, Tennessee is in the process of changing from ethical rules based upon the ABA Model Code of Professional Responsibility (in Tennessee Supreme Court Rule 8) to rules based upon the ABA Model Rules of Professional Conduct.  For simplicity, these are referred to as the AOld Code@ (i.e., the existing Tennessee Code of Professional Responsibility) to the ANew Rules@ (i.e., the Proposed Tennessee Rules of Professional Conduct).

 

1.                  Your ethical obligations as a criminal defense lawyer continue even when a former client claims ineffective assistance.

                        1.1   These obligations transcend the termination of the relationship.

                        1.2    Nowhere are they more important than in the capital context.

                     1.3   Even as a witness, before a court, called by the prosecutor, in ethical terms you have obligations to but one case and one client.

2.                  Ethical Obligations Implicated in a PostConviction Challenge of Ineffectiveness.

                       2.1   Obligations to the Former Client

.                           2.1.1    Duty of Loyalty

.                                 2.1.1.1   Limits post-representation disclosure of damaging information that was gained during  the representation; and

.                                 2.1.1.2    May require volunteering of information to former client=s subsequent counsel that would benefit former client.

.                      2.1.2   Duty of Competent Representation

.                              2.1.2.1  Bars agreements limiting the lawyer=s malpractice liability during representation and waivers of postconviction rights in guilty pleas;

.                                  2.1.2.2    May permit knowing waiver postconviction rights in capital context?

                           2.1.3    Duty of Zealous Representation

                     2.2   Other Obligations

.                           2.2.1   Duty of Candor to the Tribunal (New Rules, Proposed Rule 3.3)

.                                2.2.1.1   May require disclosure of ineffectiveness while representing client;

.                        2.2.1.2  May suggest obligation to disclose ineffectiveness even after representation.

3.               How, for the criminal defense lawyer facing a postconviction claim, do the applicable Proposed Tennessee Rules of Professional Conduct (ANew Rules@) differ from the existing the Tennessee Code of Professional Responsibility (AOld Code@)?

                   3.1   The New Rules, unlike the Old Code, and unlike the ABA Model Rules of Professional Conduct, specifically acknowledge the constitutional obligations of criminal defense counsel, and their impact on the ethical rules.

Rule 3.3, Proposed Tennessee Rules of Professional Conduct (Candor to the Tribunal), Note 17 states: AThese Rules apply to defense counsel in criminal cases, as well as in other instances. However, the definition of the lawyer=s ethical duty in such a situation may be qualified by constitutional provisions for due process and the right to counsel in criminal cases.  The obligation of the advocate under these Rules is subordinate to any such constitutional requirement.@

          3.2   The New Rules impliedly impose a duty to affirmatively try to rectify one=s less than competent representation of a client.  This Comment was deleted from the New Rules, although the Committee Notes from the TBA Committee for the Study of the Standards of Professional Conduct explained that this Adeletio[n was] made to bring proposed Tennessee Rule 1.1 into conformity with ABA Model Rule 1.1 Although the Committee approved the substance of the deleted material, it was the conclusion that it was not sufficiently important to warrant sacrificing the uniformity that comes with adoption of the ABA Model Rule.@

Comments to Proposed Rule 1.1, & 10: AIf a lawyer comes to know that he or she has not provided competent representation to a client and that the failure to do so is likely to have or has had a material adverse effect on the representation of the client, the lawyer should try to prevent or rectify the adverse effect.  If unable to do so, the lawyer should consult with the client about the problem and act reasonably to compensate client for losses caused by the failure of the lawyer to provide the competent representation required by this rule.@

                   3.3   The New Rules expand both the scope of information gained during the representation that may be disclosed, and the circumstances under which disclosure is permissible, after an allegation of wrongful conduct by counsel.

.                     3.3.1   A wider scope of information gained during the representation would be subject to disclosure. 

.                                     3.3.1.1   New Rules: AA lawyer may reveal information relating to representation of a client. . . .@ Prop. Rule 1.6(b)

.                                        3.3.1.2   Old Code: AA lawyer may . . . reveal confidences or secrets necessary to . . . defend the lawyer or the lawyer=s employees or associates against an accusation of wrongful conduct.@ (AConfidence@ is information protected by the attorney-client privilege, Asecret@ is other information gained in the professional relationship that the client has requested be held inviolate or whose disclosure would be embarrassing or likely detrimental to the client.)  DR 4-101(C)(4).

                       3.3.2   Disclosure would be permitted under a wider range of circumstances.

.                             3.3.2.1   New Rules: Ato establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer=s representation of the client.@ Prop. Rule 1.6(b)(5).

.                                      3.3.2.2   Old Code: Ato defend the lawyer or the lawyer=s employees or associates against an accusation of wrongful conduct.@ DR 4-101(C)(4).

4.                Three Continuing Ethical Obligations Apply when Your Former Client Challenges Your Effectiveness.

     4.1                   Duty of Loyalty to the Former Client

.                   4.1.1   Sources

.                              4.1.1.1   The Old Code addresses the duty of loyalty to former clients by implication through the duty of confidentiality. 

                          (1)1                  EC 4-6 provides: AThe obligation of a lawyer to preserve the confidences and secrets of the client continues after the termination of employment.@

                          (1)2                  DR 4-101(B) provides: A[A] lawyer shall not knowingly . . . (1) reveal a confidence or secret of a client.@  Note that there is an exception to this in DR 4-101(C)(4): AA lawyer may reveal (4) Confidences or secrets necessary to . . . defend the lawyer or the lawyer=s employees or associates against an accusation of wrongful conduct.@

                       4.1.1.2            The New Rules address the duty of loyalty to former clients as a conflicts matter.  They expand the circumstances under which disclosure is possible and the scope of the disclosures.

                         (2)1                  Proposed Rule 1.9(c) (Conflict of Interest: Former Client) - AUnless the former client consents after consultation, a lawyer who has formerly represented a client in a matter . . . shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules otherwise permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation of the former client except as these Rules otherwise permit or require with respect to a client.@

.            4.1.2                  The duty of loyalty to the client continues beyond the end of the representation.

.                                              4.1.2.1   Old Code

                                 (1)1                  EC 4-5 provides: AA lawyer should not use information acquired in the course of the representation of a client to the disadvantage of the client.@

                                  (1)2                  DR 4-101(B) provides: A[A] lawyer shall not knowingly

                                                    . . . (1) reveal a confidence or secret of a client.@

.                      4.1.2.2              New Rules

                  (2)1    Proposed Rule 1.9(c)  (Conflict of Interest: Former Client) (above).

                                (2)2                  Note that there is now a mandatory Duty of Candor to the Tribunal that may affect counsel=s obligations in the postconviction text.  Proposed Rule 1.6(c):

A lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes disclosure is necessary: (1) to comply with an order of a tribunal requiring disclosure but only if ordered to do so by the tribunal after the lawyer has asserted on behalf of the client all non-frivolous claims that the information sought by the tribunal is protected against disclosure by the attorney-client privilege or other applicable law, [or] to comply with [The Duty of Candor to the Tribunal].@

.                    4.1.2.3                AThe relationship between an attorney and a client is highly fiduciary in its nature and of a very delicate, exacting, and confidential character, requiring a high degree of loyalty and good faith.  This fiduciary relationship exists as a matter of law between an attorney and client; this requires all transactions between them growing out of such relationship to be subject to the closest scrutiny and involving the highest degree of personal trust and confidence.@  John Wesley Hall, Jr., Professional Responsibility of the Criminal Defense Lawyer, '4:6, p. 87 (Clark, Boardman, Callahan, 2d ed., 1996)(footnotes omitted).

           4.1.3              A limited exception to the duty of loyalty applies when a former client brings a claim of ineffective assistance.

                   4.1.3.1             The former client=s claim of ineffective assistance triggers an exception to the duty that permits the revelation of information. 

                              (1)1                  Old Code: DR 4-101(C)(4) provides: AA lawyer may reveal: . . . [c]onfidences or secrets necessary . . .  to defend the lawyer or the lawyer=s employees or associates against an accusation of wrongful conduct.@

                                (1)2                  New Rules: Proposed Rule 1.6(b)(5) would provide: AA lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes disclosure is necessary . . . (5) . . . to respond to allegations in any proceeding concerning the lawyer=s representation of the client.@

                                     (2)1                  The filing of a complaint with the disciplinary board triggers the exception in DR 4-101(C).  Kalyawongsa v. Moffett, 105 F.3d 283, 290 (6^th Cir. 1997).

                      4.1.3.2               The exception is limited in scope.

                               (2)1                 Under the Old Code, the exception is limited to confidences or secrets Anecessary@ to defend against the allegation, not everything.  DR 4-101(C)(4).

                               (2)2                  Under the New Rules, the scope is perhaps slightly more limited, as it applies only Ato the extent the lawyer reasonably believes disclosure is necessary.@  Proposed Rule 1.6(b)(5).  That is, the lawyer must objectively believe the disclosure is necessary.

                               (2)3                  The scope of what may be disclosed under the New Rules tracks the ABA Standards for Criminal Justice - Defense Function, which explicitly apply to the postconviction context.  Standard 4-8.6(d) provides: A(d) Defense counsel whose conduct of a criminal case is drawn into question is entitled to testify concerning the matters charged and is not precluded from disclosing the truth concerning the accusation to the extent defense counsel reasonably believes necessary, even though this involves revealing matters which were given in confidence.@   (Emphasis supplied).

                              (2)4                  The allegation of ineffective assistance has been held to effectively waives the attorney-client privilege to the extent that the state shows information possessed by trial counsel is Avital to its defense in the postconviction action.@  Bryan v. State, 848 S.W.2d 72, 81 (Tenn.Crim.App. 1992) (defendant=s version of events challenging validity of his guilty plea as not knowingly, voluntarily and understandingly entered cannot be used as sword while using privilege as a shield to keep his former counsel from answering the claim).

                              (2)5                  Note Bryan did not involve a claim of ineffective assistance, although it would likely apply to one. 

                             (2)6                  See also Biles v. State, 1991 Tenn Crim App LEXIS 900 (rejecting argument that privilege applies in challenge to guilty plea where ineffective assistance of counsel not raised) and Clifton v. State, 1994 Tenn Crim App LEXIS 219.

              4.1.4                    Duty of Competent Representation

                      4.1.4.1                  Sources

                               4.1.4.1.1                  The Old Code addresses the duty of competent representation to former clients by implication through the duty of confidentiality.

                                          (1)1   Canon 6: AA Lawyer Should Represent a Client Competently.@

                     (1)2     DR 6-101: AA Lawyer shall not: Handle a legal matter which the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it.@

                               4.1.4.1.2                  The New Rules define competence and, by implication from the deleted comments, explain what counsel should do if counsel has not been competent.  Proposed Rule 1.1 (Competence): AA lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.@

                                          (2)1                  Deleted (but approved in substance) Comments to Proposed Rule 1.1, & 10: AIf a lawyer comes to know that he or she has not provided competent representation to a client and that the failure to do so is likely to have or has had a material adverse effect on the representation of the client, the lawyer should try to prevent or rectify the adverse effect.  If unable to do so, the lawyer should consult with the client about the problem and act reasonably to compensate client for losses caused by the failure of the lawyer to provide the competent representation required by this rule.@

                   4.1.4.2                  The Obligation of Competent Representation precludes you from taking steps while representing the client that will prevent them from vindicating their right to have been competently represented after the fact.

                           4.1.4.2.1                  While violations of the disciplinary rules do not necessarily amount to ineffective assistance, Nix v. Whiteside, 475 U.S. 157, 165 (1986) (Abreach of an ethical standard does not necessarily make out a denial of the Sixth Amendment guarantee of assistance of counsel@), some can.  Holloway v. Arkansas, 435 U.S. 475, 490 (1978) (representing over counsel=s objection three codefendants, prevented from cross-examining any on behalf of others)

                             4.1.4.2.2                  Since representation that is not professionally competent may be constitutionally ineffective, the prohibition on limiting a client=s post-representation claims for malpractice suggests one cannot limit later challenges for ineffectiveness.

                                           (1)1                  No client agreements to limit malpractice liability.                         

                                                                                                         1)1  Old Code: DR 6-102(A),Tenn.S.Ct.Rule 8, provides: AA lawyer shall not attempt to exculpate or limit liability to clients for personal malpractice.@

                                                       1)2       New Rules: Rule 1.8(h)(1) (CONFLICT OF INTEREST: PROHIBITED TRANSACTIONS) provides: AA lawyer shall not: . . . enter into an agreement with a prospective, current, or former client to prospectively limit the lawyer=s liability to the client for malpractice[.]@

                                            (1)2                  The Tennessee Board of Professional Responsibility has opined that, pursuant to DR 6-102(A), Aneither a prosecutor or [sic] defense counsel can ethically include a provision in a plea agreement which waives the defendant=s right to allege ineffective assistance of counsel or prosecutorial misconduct.@ Tenn.Bd.Prof.Resp., Advisory Op. 94-A-549 (1994) (attached).

                 4.1.4.3                  The substance of the New Rules thus suggest that one must rectify one=s less than ethically competent representation, even if it is not necessarily constitutionally ineffective. 

                           4.1.4.3.1                  Deleted Comments to Proposed Rule 1.1, & 10 (AIf a lawyer comes to know that he or she has not provided competent representation to a client and that the failure to do so is likely to have or has had a material adverse effect on the representation of the client, the lawyer should try to prevent or rectify the adverse effect.@) (emphasis supplied).

                                           (1)1                  Note Amaterial adverse@ effect requirement.

                                          (1)2                  Note that professional lack of competence - even when it amounts to nondisclosure of a non-waivable conflict - may not necessarily be constitutional ineffectiveness.  See Mickens v. Taylor, 2002 WL 459251, 122 S.Ct. 1237, 70 USLW 4216 (3/27/2002) (ethical violation from capital defendant=s counsel having briefly represented victim at time he was allegedly killed by defendant did not amount to Aactual conflict@ of interest that would preclude requirement of effect on outcome) (copy attached).

                          4.1.4.3.2                  Proposed Rule 1.1. might thus suggest

                                         (2)1                  At least an obligation to volunteer, identify or highlight to the former client=s present counsel areas in which you may have been less than effective, and

                                         (2)2                  Perhaps (combined with Proposed Rule 3.3's Obligation of Candor to the Tribunal) an obligation to volunteer such instances to the court.

                 4.1.4.4                    Duty of Zealous Representation

                            4.1.4.4.1                  Sources

                                         4.1.4.4.1.1                  Old Code

                                                      (1)1                  Cannon 7 provides: AA Lawyer should represent a Client Zealously within the Bounds of the Law.@

        (1)2                  DR 7-101(A)(4)(c) provides: AA lawyer shall not intentionally: . . . (c) prejudice or damage the client during the course of the professional relationship, except as required under DR 7-102(B) [the crime-fraud exception].@

                                         4.1.4.4.1.2                  New Rules

                                                        (2)1                  Comment, Prop. Rule 1.3 (Diligence), &1: AA lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client=s behalf.@

                          4.1.4.4.2                  But note that even after the end of the representation, the attorney-client privilege, the duty to maintain confidences and secrets continue, and the duty not to prejudice the client in the withdrawal all continue.

5.                  The Meaning of One Case, One Client

           5.1           The case and the client transcend your representation.

          5.2            After representation, the next counsel may - as a part of their duty of zealous representation, challenge your effectiveness.

         5.3         What do your duties of loyalty to the client, competence and zealous representation require of you for the former client?

                 5.3.1   Fully cooperate with post-conviction counsel.

                        5.3.1.1                Provide the file, papers and property of the client.

                                 (1)1                  Canon 2 of the Old Code provides: AA Lawyer Should Assist the Legal Profession in Fulfilling Its Duty to Make legal Counsel Available.@

                                (1)2                  The defense lawyer=s obligation to make legal counsel available requires that counsel take care to protect the interests of a client when terminating the representation.

                                 (1)3                  EC 2-32 provides in relevant part: AEven when the lawyer justifiably withdraws, a lawyer should protect the welfare of the client by giving due notice of his withdrawal, suggesting employment of other counsel, delivering to the client all appears and property to which the client is entitled, cooperating with counsel subsequently employed, and otherwise endeavoring to minimize the possibility of harm.@

                                 (1)4                  DR 2-110(A)(2) provides: A[A] lawyer shall not withdraw from employment until the lawyer has taken reasonable steps to avoid foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, delivering to the client all appears and property to which the client is entitled, and complying with applicable laws and rules.@

                                 (1)5                  Whether an attorney is discharged by a client or voluntarily withdraws, Athe attorney should turn over to the client all papers and property@ to which the client is entitled, including the client=s file and all other information generated in representing the client which was not conditioned upon non-disclosure to the client.@  Crawford v. Logan, 656 S.W.2d 360, 363 (Tenn. 1983) (discharged divorce lawyer, who withheld tape of interview with woman who allegedly had an affair with the husband of his former client, violated DR 2-110(A)(2)).

           5.3.2                  Provide information relevant to the claim of ineffective assistance which is not in the file, papers or property of the client, including absences in the record and counsel=s strategic thinking. 

                    5.3.2.1                  The California State Bar Commission on Professional Responsibility has opined as follows:

In the criminal context, appellate counsel has a duty to identify arguable issues and raise them on direct appeal or in related writ proceedings.  Full and prompt disclosure by trial counsel of matters which may not be in the record provides for expeditious processing of the client=s case.  Where trial counsel refuses to cooperate with the investigation of a claim of ineffective assistance of counsel, the end result may be that formal habeas proceedings may be instituted prematurely by appellate counsel, and this may work to the detriment of the client.  In such situations, trial counsel=s refusal to cooperate may harm the client, and by harming the client, counsel is violating the ethical duty she owes her client.

We believe that the Rules of Professional Conduct impose a duty upon trial counsel to fully and candidly discuss matters relating to the representation of the client with appellate counsel and to respond to the questions of appellate counsel, even if to do so would disclose that trial counsel failed to provide effective assistance of counsel.  This decision is in accord with the general rules that the attorney owes a duty of complete fidelity to the client and to the interests of the client.@¹

                        5.3.2.2                  The ABA Standards for Criminal Justice - Defense Function provide that collateral counsel should pursue relief Awithout hesitat[ion]@ for those who are determined to have not received effective assistance of counsel, and  defense counsel should withdraw if they realize that they failed to render effective assistance of counsel in an earlier phase. 

                                   (2)1                  ABA Standard 4-8.6(a) provides: If defense counsel, after investigation, is satisfied that another defense counsel who served in an earlier phase of the case did not provide effective assistance, he or she should not hesitate to seek relief for the defendant on that ground.

                                    (2)2                  ABA Standard 4-8.6(b) provides: If defense counsel, after investigation, is satisfied that another defense counsel who served in an earlier phase of the case provided effective assistance, he or she should so advise the client and may decline to proceed further.

                                   (2)3                  ABA Standard 4-8.6(c) provides: If defense counsel concludes that he or she did not provide effective assistance in an earlier phase of the case, defense counsel should explain this conclusion to the defendant and seek to withdraw from representation with an explanation to the court of the reason therefor.

                                    (2)4                  ABA Standard 4-8.6 (Commentary) explains:

Since counsel must zealously represent his or her client=s interests at all times, where appellate counsel was also trial counsel, such posttrial representation should also include scrutiny of counsel=s own representation of the client at trial.  Where counsel concludes that his or her prior representation was ineffective, in the interests both of effective representation and avoidance of conflicts in interest, counsel should explain this conclusion to the client and seek permission from the court to withdraw from further representation on this basis.  Commentary, p. 248 (3d ed. 1993).

6.                  Obligatory Practices

           6.1                    Prompt and Complete Disclosure of Files and Notes to Former Client=s Post-Conviction Counsel

   6.1.1  Current ethical rules make clear that the files concerning a former client belong to the client, not the lawyer.  This is the case even if the former client is alleging ineffective assistance on the part of the lawyer.  Both the Model Rules and the Model Code dictate return of a former client's Apapers,@ and to fully satisfy the ethical obligations of loyalty, this should include any document or item obtained for or generated in connection with the representation, whether it was actually used in the representation or not.

           6.2                    Volunteering the Absences in the Record