April 18, 2018

2008 Guideline 4.1


A. In performing the mitigation investigation, counsel has the duty to obtain services of persons independent of the government and the right to select one or more such persons whose qualifications fit the individual needs of the client and the case. Applications to the court for the funding of mitigation services should be conducted ex parte, in camera, and under seal.

B. Counsel has a duty to hire, assign or have appointed competent team members; to investigate the background, training and skills of team members to determine that they are competent; and to supervise and direct the work of all team members. Counsel must conduct such investigation of the background, training and skills of the team members as will determine that they are competent and must ensure on an ongoing basis that their work is of high professional quality.

C. All members of the defense team are agents of defense counsel. They are bound by rules of professional responsibility that govern the conduct of counsel respecting privilege, diligence, and loyalty to the client. The privileges and protections applicable to the work of all defense team members derive from their role as agents of defense counsel. The confidentiality of communication with persons providing services pursuant to court appointment should be protected to the same extent as if such persons were privately retained. Like counsel, non-attorney members of the defense team have a duty to maintain complete and accurate files, including records that may assist successor counsel in documenting attempts to comply with these Guidelines.

D. It is counsel’s duty to provide each member of the defense team with the necessary legal knowledge for each individual case, including features unique to the jurisdiction or procedural posture. Counsel must provide mitigation specialists with knowledge of the law affecting their work, including an understanding of the capital charges and available defenses; applicable capital statutes and major state and federal constitutional principles; applicable discovery rules at the various stages of capital litigation; applicable evidentiary rules, procedural bars and “door¬opening” doctrines; and rules affecting confidentiality, disclosure, privileges and protections.

Cross- References:

ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases 4.1—The Defense Team and Supporting Services. ABA Model Rules of Professional Conduct 1.3—Diligence; 1.6— Confidentiality of Information; 1.7—Conflict of Interest: Current Clients; 1.8—Conflict of Interest: Current Clients: Specific Rules; 1.9— Duties to Former Clients; 1.10—Imputation of Conflicts of Interest: General Rule; 1.11—Special Conflicts of Interest for Former and Current Government Officers and Employees; 1.14—Client with Diminished Capacity; 2.3—Evaluations for Use by Third Person.