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OBLIGATIONS OF TRIAL COUNSEL TO A FORMER CLIENT WHO IS PURSUING POST-CONVICTION RELIEF

OBLIGATIONS OF TRIAL COUNSEL TO A FORMER CLIENT WHO IS PURSUING POST-CONVICTION RELIEF. Presented by the Office of the Public Defender March 6, 2009 Michael Wiseman, Chief, Capital Habeas Corpus Unit, Federal Community Defender, Eastern District of Pennsylvania Michael_Wiseman@fd.org.

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OBLIGATIONS OF TRIAL COUNSEL TO A FORMER CLIENT WHO IS PURSUING POST-CONVICTION RELIEF

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  1. OBLIGATIONS OF TRIAL COUNSEL TO A FORMER CLIENT WHO IS PURSUING POST-CONVICTION RELIEF Presented by the Office of the Public Defender March 6, 2009 Michael Wiseman, Chief, Capital Habeas Corpus Unit, Federal Community Defender, Eastern District of Pennsylvania Michael_Wiseman@fd.org

  2. Sixth Amendment Duty of Loyalty • “Representation of a criminal defendant entails certain basic duties. Counsel's function is to assist the defendant, and hence counsel owes the client a duty of loyalty . . .” Strickland v. Washington, 466 U.S. 668, 688 (1984)

  3. Complex Set of Issues Consult • MAKING THE LAST CHANCE MEANINGFUL: PREDECESSOR COUNSEL'S ETHICAL DUTY TO THE CAPITAL DEFENDANT, Lawrence J. Fox, 31 Hof.L.R. 1181, 1185 (2003) (hereafter, Last Chance); • Capital Guidelines and Ethical Duties: Mutually Reinforcing Responsibilities, Lawrence J. Fox, 36 Hof.L.R. 775 (2008) • Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, American Bar Association, Revised Ed., 2003, Guidelines 10.13 and 10.14(hereafter ABA Guidelines)

  4. Who Wants to Be Ineffective? “No one wants to be accused of being ineffective. No one ever wants to be second-guessed. Everyone wants to defend his or her conduct by asserting that it was in fact effective and that the judgments that were made were defensible if not sound. Certainly the fact that the former client is questioning former counsel's conduct will elicit scorned feelings. This human reaction is an overwhelming presence in the habeas context because of the likelihood that ineffective assistance will be raised both because it is a claim with important constitutional underpinnings and because this is often the first time it can be raised. Moreover, the state's defense to the habeas claim, of course, will be that habeas counsel is simply second-guessing, with the benefit of hindsight, strategic decisions made by trial counsel.” Last Chance at 1185.

  5. Who Wants to Be . . . • “[I]t is critical that predecessor counsel put those feelings aside to determine how they can help with the habeas proceedings. After all, counsel has not been ‘replaced’ for this proceeding necessarily because of a dim view of counsel's performance. It is simply that the last person who can determine whether there is an ineffective assistance claim and then assert it is original trial counsel.” Id.

  6. On-Going Duty • Thus, trial/predecessor counsel have a continuing duty to their former client. See, ABA Guidelines, at Guideline 10.13: “[A]ll persons who are or have been members of the defense team have a continuing duty to safeguard the interests of the client and should cooperate fully with successor counsel”

  7. On-Going Duty . . . • These on-going duties include: • Maintaining the record of the case • Providing the client’s file and all relevant information to successor counsel • Generally cooperating with successor counsel

  8. Continued Duty of Loyalty in Post-Conviction • The duty to retain client confidences and other privileges (e.g. work product) survive the representation and indeed the client’s death. Swidler & Berlin v. U.S., 524 U.S. 399, 410 (1998) (“attorney-client privilege survives the death of the client”) • Model Rules of Professional Conduct, 1.6, cmt.: (“duty of confidentiality continues after the client-lawyer relationship has terminated”).

  9. Thus . . . • Trial counsel may not divulge confidential or privileged information without consent of former client. • But, these does not include withholding information from successor counsel, seeABA Guidelines, at Guideline 10.13 (B): Counsel has duty to “provid[e] the client’s files, as well as information regarding all aspects of the representation to successor counsel”

  10. But . . . • What about Rule 1.6: “A lawyer may reveal [privileged] information … to respond to allegations in any proceeding concerning the lawyer’s representation of the client”

  11. Duty to Maintain Privileges • Distinction between trial counsel as witness and outside of the courtroom: • “Too many lawyers fail to appreciate the difference between what is protected by the attorney-client [or work-product] privilege and what is confidential . . . The former only applies when a lawyer is called to testify, and the latter governs how the lawyer conducts herself off the witness stand” Last Chance, at 1187-88

  12. Claims of IneffectivenessAct as a Waiver of Privileges Related to the Particular Issue • Laughner v. U.S., 373 F.2d 326, 327 & n.1 (5th Cir. 1967); Johnson v. Alabama, 256 F.3d 1156 (11th Cir. 2001); Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003); Baker v. General Motors, 209 F.3d 1051, 1055 (8th Cir. 2000)

  13. Scope of Waiver • However, the conclusion that there is a waiver does not speak to the question of what is waived and the mechanics of prior counsel’s disclosure • Waiver is Claim Specific -- See e.g., Mason v. Mitchell, 293 F.Supp.2d 819-823-24 (N.D. Ohio 2003) (“waiver in habeas cases should be limited to the extent necessary to litigate a petitioner’s ineffective assistance of counsel claims”)

  14. Mechanics of Waiver • Generally, courts must “balance between the petitioner’s claims of . . . privilege and plaintiffs’ asserted need for the documents” Kerr v. U.S. District Court, 426 U.S. 394, 405 (1976) • Distinction between “express” and “implied” waiver of privilege – the former happens when privileged information is disclosed to a third party not bound by privilege and the latter occurs when, inter alia, a petitioner raises an ineffectiveness claim, Bittaker v, Woodford, 331 F.3d at 719-20

  15. Mechanics of Implied Waiver • Bittaker cautions that scope of implied waiver must be: “no broader than needed to ensure the fairness of the proceedings . . . [and must be] closely tailored” Id., see also, Johnson, 256 F.3d at 1179 (“precise boundaries of the privilege will vary from case to case . . . and requires careful evaluation by the district court”); Alvarez v. Woodford, 81 Fed.Appx. 119, 2003 WL 22682463 (9th Cir. Nov. 12, 2003) (approving disclosure responsive to ineffectiveness claim after “Judge gave careful consideration to each document . . . such that only those documents . . . relating to the claim asserted by the client would be disclosed”)

  16. Conclusion • The Above Authorities dictate the trial/predecessor counsel follow the following four points: • Cooperate with successor counsel by providing all information and records – client release not needed • Maintain all privileges and confidences until ordered to divulge by court • Insure that privileges and confidences are protected by the court • Do not discuss the case with prosecutor outside of formal proceedings

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