Team Defense One Case, One Client

1. Team DefenseOne Case, One Client TACDL 4-27-02 Nashville, Tennessee

2. As a Matter of Ethics:You have One Case and One Client • Obligations to the former client • TRANSCEND the REPRESENTATION • APPLY EVEN in an INEFFECTIVENSS CHALLENGE • APPLY EVEN • WHEN YOU ARE A WITNESS, • CALLED BY THE PROSECUTION • Nowhere are these more important than in capital cases.

3. “Old Code” v. “New Rules” • Change from ethical standards based upon the • ABA Model Code of Professional Responsibility (in Tennessee Supreme Court Rule 8) to • Ones based upon the ABA Model Rules of Professional Conduct. • For simplicity, • the “Old Code” (i.e., the existing Tennessee Code of Professional Responsibility) v . • the “New Rules” (i.e., the Proposed Tennessee Rules of Professional Conduct). • TBA Petition to Tenn. Sup. Ct. Seeking Adoption of Proposed Tennessee Rules of Professional Conduct: http://www.tba.org/committees/Conduct/index.html

4. Ethical Obligations Implicated in a Postconviction Challenge • Duty of Loyalty to Former Client • Duty of Competent Representation to Former Client • Duty of Zealous Representation to Former Client • New Duty of Candor to the Tribunal

5. Duty of Loyalty to Former Client • Old Code • “Lawyer Shall Not Use Information Acquired in the Course of the Representation . . . to the Disadvantage of the Client” EC 4-5 • “Obligation . . . to preserve Confidences and Secrets of the Client Continues After the Termination of the Employment.” EC 4-6 • “Lawyer Shall not Knowingly . . . Reveal a confidence or secret of a client.” DR 4-101(B) • New Rules • “Lawyer shall not . . . Reveal information relating to the representation of the former client except as these Rules otherwise permit or require.” Rule 1.9(c)(2)

6. When Can You Reveal Information to Protect Yourself? • Old Code: “Lawyer may reveal confidencesorsecretsnecessary to defend the lawyer against an accusation of wrongful conduct.” DR 4-101(C)(4) • NewRules: “Lawyer may reveal informationrelatingtotherepresentation of a client to the extent lawyer reasonablybelieves disclosure is necessary.” Rule 1.6(b)(5)

7. Disclosures under Old Code v. New Rules New Rules permit wider scope of disclosure (information relating to representation v. confidences/secrets) New Rules permit disclosure in wider range of circumstances (to respond to allegations in any proceeding concerning lawyer’s representation v. to defend against accusation of wrongful conduct)

8. Duty of Competent Representation • Old Code: “A Lawyer Should Represent a Client Competently.” Canon 6 • New Rules: “A Lawyer shall provide competent representation . . . [which] requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Rule 1.1.

9. Practices Prohibited by Duty of Competent Representation • Client Agreements to Limit Malpractice Liability (Old Code DR 6-102(A); New Rules 1.8(h)(1)) • Waivers of Postconviction Rights to Allege Ineffective Assistance or Prosecutorial Misconduct (Tenn. Bd. Prof. Resp. Adv. Op. 94-A-549 (1994))

10. Your Obligations if You Were Less Than Competent • Old Code said NOTHING about this. • New Rules deleted comments imposed an AFFIRMATIVE DUTY to rectify less than competent representation. • The defense bar will be the entity to give this meaning.

11. Deleted Comment to Rule 1.1, ¶ 10 • “If 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. . . .” • The TBA Committee reports while it “approved the substance of the deleted material, it was . . . not sufficiently important to warrant sacrificing the uniformity that comes with adoption of the ABA Model Rule.”

12. Ethical Violations v. Ineffective Assistance • Disciplinary rule violations not necessarily ineffective assistance. Nixv. Whiteside, 475 U.S. 157, 165 (1978). • Even failure to disclose a non-waivable conflict is not necessarily ineffectiveness. Mickens v. Taylor, 122 S.Ct. 1237 (2002) (capital defendant’s counsel having briefly represented victim when allegedly killed by defendant not “actual conflict” of interest that would preclude requirement of effect on outcome for ineffectiveness claim).

13. What does duty of competent representation obligate you to do when your work is challenged? • Under Rule 1.1 (Duty of Competent Representation) • volunteer, identify or highlight to the former client’s present counsel areas in which you may have been less than effective, and • Under Rule 3.3 (Obligation of Candor to the Tribunal) • volunteer such instances to the court.

14. Duty of Zealous Representation • Old Code • “A Lawyer should represent a Client Zealously within the Bounds of the Law.” Canon 7. • “A 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].” DR 7-101(A)(4)(c). • New Rules • “A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” Comment, Rule 1.3 (Diligence), ¶ 1.

15. The Former Client’s New Lawyer Should Be Doing This • Don’t take it personally. • You are a witness, not a party. • Your obligation under duty of competent representation not to disadvantage the former client means notfrustrating present counsel’s zealous advocacy.

16. New Duty of Candor to the Tribunal • “A lawyer shall not knowingly: make a false statement of fact or law to a tribunal[.]” Rule 3.3(a)(1). • Principal issues concern client-fraud or client-perjury • Technically applies only during representation, however note the obligation to make reasonably diligent inquiry BEFORE making a REPRESENTATION to the court.

17. Representations by a Lawyer (Comment, ¶3 to Rule 3.3) An advocate is responsible for pleadings and other documents prepared for litigation, but is usually not required to have personal knowledge of matters asserted therein . . . . However, an assertion purporting to be on the lawyer's own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry. There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation.

18. Comment 17 to Rule 3.3: The Constitution Trumps the Rules for Criminal Defense Lawyers These 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.

19. Obligation to make disclosures necessary to enforce the client’s constitutional rights? • You may not knowingly make a false statement of fact. • Before making a representation, you must believe it true based on reasonably diligent inquiry. • Failure to disclose may be affirmative misrepresentation. • To enforce due process and the right to counsel, must you as former counsel volunteer your failings, lest you not be candid with the tribunal?

20. What Must You Do? • Cooperate with postconviction counsel (Provide files, papers and property of the client) • Volunteer Absences in the Record • Volunteer Strategic Thinking

21. ASK IN ADVANCE David M. Siegel (617) 422-7270 (617) 422-7453 (fax) dsiegel@fac.nesl.edu