July 31, 2018

The Established Continuing Duty

By David M. Siegel & Tigran W. Eldred

The continuing duty of criminal defense counsel to former clients is now a nationally recognized standard of practice.1 Most lawyers know they have continuing confidentiality obligations to former clients,2 but criminal defense counsel must not only protect confidentiality, they must also affirmatively disclose this confidential information to their former clients’ new lawyer, either on appeal or in post-conviction proceedings.3 These disclosure obligations, also part of the continuing duty, enable the new lawyer (and the court) to review the defense lawyer’s work.4 As part of the obligation of loyalty to the former client, and to avoid prejudice to their former clients’ rights, defense counsel must disclose this information even when it will be used to attack their own prior representation.5 In particular, this means that conversations and other information shedding light on defense counsel’s strategic thinking — perhaps the most important evidence when ineffectiveness is alleged6 – must be shared with successor counsel as part of this continuing duty.7

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