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
But it’s not just for defense counsel: the continuing duty affects prosecutors as well. While most prosecutors surely know they may not seek a criminal defendant’s privileged communications or confidential information, some may not realize this prohibition extends even after the lawyer’s former representation is under attack after a conviction.8 Although an allegation of ineffective assistance creates a limited waiver of confidentiality and privilege for matters at issue in the claim,9 these disclosures should be made only when necessary for the purposes of the proceeding, and under judicial supervision.10 Most significantly for prosecutors (and lawyers accused of ineffectiveness), these disclosures should not be made in informal or unsupervised ex parte settings.11 When made, they should reflect counsel’s “tempered” duty of candor to the court and others.12
The continuing duty sits at the confluence of two of the criminal justice system’s principal goals: ensuring the constitutional effectiveness of criminal defense counsel and ensuring the finality of judicial determinations in criminal cases. Effective assistance of counsel, a fundamental constitutional right13 that is also essential to confidence in the fairness of the criminal justice system and to its integrity, is ultimately enforced in any particular case only after the fact, usually in collateral review.14 While reforms at the systemic or institutional level can reduce the risk that counsel – particularly appointed counsel – will be ineffective (such as increased funding, eliminating inherent conflicts in funding schemes and improved supervision, monitoring and training15), in any specific case the only way to ensure that a particular lawyer met her or his constitutional obligation is through a case-specific review.16 This case-specific review is where the continuing duty is most critical.
Early manifestations of the continuing duty have been traced to the late 19th century,17 and the ethics body of one jurisdiction had articulated its operation in the post-conviction setting by 1992.18 One aspect of the continuing duty, to facilitate the work of successor counsel, was first identified in a national standard in 1989 in the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases.19 The duties of both trial and appellate counsel in the post judgment phase obligated them to “cooperate with subsequent counsel concerning information regarding [trial or appellate] proceedings and strategies.”20 Appellate counsel was further specifically directed to “do so concerning information obtained by appellate counsel concerning earlier stages of the case.”21
The ABA Death Penalty Guidelines reiterated and expanded this duty in 2003 with a new standard, “The Duty to Facilitate the Work of Successor Counsel,”22 which states:
In accordance with professional norms, all 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. This duty includes, but is not limited to:
A. maintaining the records of the case in a manner that will inform successor counsel of all significant developments relevant to the litigation;
B. providing the client’s files, as well as information regarding all aspects of the representation, to successor counsel;
C. sharing potential further areas of legal and factual research with successor counsel; and
D. cooperating with such professionally appropriate legal strategies as may be chosen by successor counsel.23
Most recently, the fourth edition of the American Bar Association’s Standards for Criminal Justice: The Defense Function, applicable in all criminal cases, reinforces and dramatically expands the continuing duty beyond the capital context into all criminal practice, explicitly stating that former counsel to “provide such assistance as possible” in cooperation with post-appellate counsel.24 Similar standards have also been established in the juvenile practice.25
Since 2003, issues related to the operation of the continuing duty have been addressed by state and federal courts, including the use of waivers of post-conviction rights to bring a claim for ineffective assistance,26 communications by former counsel to the prosecutor,27 and disclosure of former counsel’s file.28 Several of these issues have been the subject of opinions by state ethics authorities,29 and policy statements.30 Extensive commentary and scholarship has also ensued.31 And while the contours of defense counsel’s continuing duty to former clients will continue to be debated and litigated, the duty itself is now a firmly established standard for every criminal case.
1. The duty is recognized in several places in the latest edition of the American Bar Association’s Criminal Justice Standards for the Defense Function (Feb. 2016, 4th ed.), including, in Standard 4-1.3, eight specific “Continuing Duties of Defense Counsel”.
The ABA describes the Standards and the process by which they are created this way:
For forty years, the ABA Criminal Justice Standards have guided policymakers and practitioners working in the criminal justice arena. . . . [T]he nine-member Standards Committee appointed by the ABA President upon recommendations submitted by the Chair of the Criminal Justice Section . . . reviews, revises, and approves draft standards to be forwarded to the Criminal Justice Section Council and, ultimately, to the policymaking ABA House of Delegates. Following approval by the House, it oversees the preparation of and approves commentary to accompany the “black letter” standards. Criminal Justice Standards, American Bar Association, http://www.americanbar.org/groups/criminal_justice/standards.html (last visited June 7, 2018).
2. Model Rules of Professional Conduct R. 1.6 (2018).
3. The ABA Standards specify that at the end of the representation, the client’s file should be provided to the former client or successor counsel. ABA Standard 4-3.11(a): The Client’s File (“When a representation ends, if the client requests the client’s file, defense counsel should provide it to the client or, with the client’s consent, to successor counsel or other authorized representative.”).
4. This is successor counsel’s ethical obligation. ABA Standard 4-9.6(a) (Successor counsel “should not hesitate to seek relief for the client” if, after appropriate investigation and legal research, s/he concludes former counsel did not provide effective assistance.)
5. ABA Standard 4-9.5(c) (Post-Appellate Remedies).
6. See Strickland v. Washington, 466 U.S. 668, 691 (1984).
7. See ABA Standard 4-0.5(c), supra note 5; see also American Bar Association, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (2003), Guideline 10.13, Commentary at 1075, available at http://www.americanbar.org/groups/committees/death_penalty_representation/resources/aba_guidelines/2003-guidelines/2003-guideline-10-13.html (last visited June 7, 2018).
The duties contained in this Guideline are of enormous practical significance to the vindication of the client’s legal rights. “[T]he strategic thinking of the lawyer, and learning this strategic thinking[,] is absolutely critical to the thorough presentation of a post-conviction claim. It should be routinely and openly presented to the post-conviction counsel.” David M. Siegel, My Reputation or Your Liberty (or Your Life): The Ethical Obligations of Criminal Defense Counsel in Postconviction Proceedings, 23 J. Legal Prof. 85, 114 (1999).
8. ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 10-456 (2010) (Disclosure of Information to Prosecutor When Lawyer’s Former Client Brings Ineffective Assistance of Counsel Claim) [hereinafter ABA Formal Op. 10-456].
9. ABA Standard 4-9.6(c): Challenges to the Effectiveness of Counsel provides:
Defense counsel whose conduct in a criminal case is drawn into question is permitted to testify concerning the matters at issue, and is not precluded from disclosing the truth concerning the matters raised by his former client, even though this involves revealing matters which were given in confidence. Former counsel must act consistently with applicable confidentiality rules, and ordinarily may not reveal confidences unless necessary for the purposes of the proceeding and under judicial supervision.
See also Model Rules of Prof’l Conduct R. 1.6(b)(5).
11. ABA Formal Op. 10-456:
Against this background, it is highly unlikely that a disclosure in response to a prosecution request, prior to a court-supervised response by way of testimony or otherwise, will be justifiable. It will be rare to confront circumstances where trial counsel can reasonably believe that such prior, ex parte disclosure, is necessary to respond to the allegations against the lawyer. A lawyer may be concerned that without an appropriate factual presentation to the government as it prepares for trial, the presentation to the court may be inadequate and result in a finding in the defendant’s favor. Such a finding may impair the lawyer’s reputation or have other adverse, collateral consequences for the lawyer. This concern can almost always be addressed by disclosing relevant client information in a setting subject to judicial supervision.
12. ABA Standard 4-1.4 (Defense Counsel’s Tempered Duty of Candor) (Criminal defense counsel’s duty of candor is “tempered by competing ethical and constitutional obligations” which require acting “zealously within the bounds of the law and applicable rules to protect the client’s confidences and the unique liberty interests that are at stake in criminal prosecution.”).
13. Gideon v. Wainwright, 372 U.S. 335 (1963).
14. As the Supreme Court has noted, collateral review, which allows considerations of evidence outside the record, is preferable to direct review, which is limited to the record on appeal, as the preferred method to adjudicate claims of ineffective assistance of counsel. Massaro v. United States, 538 U.S. 500, 504-05 (2003).
16. This is a function of the Supreme Court’s having rejected, in Strickland v. Washington, 466 U.S. 668 (1984), a “checklist” approach to the assessment of ineffective assistance of counsel claims. John H. Blume and Stacey D. Neumann, “It’s Like Deja Vu All Over Again”: Williams v. Taylor, Wiggins v. Smith, Rompilla v. Beard and a (Partial) Return to the Guidelines Approach to the Effective Assistance of Counsel, 34 Am. J. Crim. L. 127, 139 (2007).
17. David M. Siegel, The Continuing Duty Then and Now, 42 Hofstra L. Rev. 447, 453 (2013) (citing State v. Jones, 12 Mo. App. 93 (1882)).
18. State Bar of Cal. Standing Comm. on Prof’l Responsibility, Formal Op. 1992-127, 1-2; Rule 3-700 (as part of counsel’s continuing obligation “to avoid prejudice to the rights of the client.”)
19. American Bar Association, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (1989), available at https://www.americanbar.org/content/dam/aba/migrated/2011_build/death_penalty_representation/1989guidelines.authcheckdam.pdf.
20. See id.; Standard 11.9.1 (“Duties of Trial Counsel in Post Judgment Proceedings”) & Standard 11.9.2 (“Duties of Appellate Counsel in Post Judgment Proceedings”).
21. Standards 11.9.1(d) & 11.9.2(d).
22. American Bar Association, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev’d ed. 2003), available at http://www.americanbar.org/groups/committees/death_penalty_representation/resources/aba_guidelines/2003-guidelines/2003-guideline-10-13.html.
23. Id. For implementation of Guideline 10.13 at the state level, see Siegel, supra note 17, at 458–59 (“Eight states or sub-state level jurisdictions have, at least, officially implemented some portion of the Guidelines; and some courts and several defender organizations have added Guideline 10.13 or its substance to their performance standards”). Judicial treatment of the Guideline has been scant. See id.
24. ABA Standard 4-9.5(c) (Post-Appellate Remedies); see also supra notes 2-6. Standard 4-1.1(b) sets forth the scope and parameters of the Defense Function Standards:
These Standards are intended to provide guidance for the professional conduct and performance of defense counsel. They are not intended to modify a defense attorney’s obligations under applicable rules, statutes or the constitution. They are aspirational or describe “best practices,” and are not intended to serve as the basis for the imposition of professional discipline, to create substantive or procedural rights for clients, or to create a standard of care for civil liability.
25. The National Juvenile Defense Standards set forth “Obligations of Trial Counsel to Appellate Attorney,” Standard 7.4, available at http://njdc.info/wp-content/uploads/2013/09/NationalJuvenileDefenseStandards2013.pdf (last visited June 7, 2018).
26. See U.S., ex rel. U.S. Attorneys, ex rel. E. & W. Dist. Kentucky v. Kentucky Bar Ass’n, 439 S.W.3d 136 (Ky. 2014) (finding that defense counsel cannot ethically advise a client to accept a plea bargain conditioned on waiving a claim of ineffective assistance of counsel).
27. See, e.g., Bryant v. United States, No. 3:15-CV-2158, 2016 WL 2930872, at *8 (C.D. Ill. May 19, 2016) (citing ABA Formal Opinion 10-456, noting that “the ‘most prudent course’ for a defense attorney to take before disclosing confidential communications and other information—even if the attorney believed that a waiver of the privilege had clearly occurred—is to secure an administrative or judicial determination that the disclosure would not violate the attorney-client privilege”) (quoting Staszak v. United States, No. 15-20, 2015 WL 4474333 (S.D. Ill. July 21, 2015)).
28. See, e.g., Stanley v. Warden, San Quentin State Prison, No. 2:95–CV–1500 JAM CKD (E.D. Cal. Dec. 3, 2014), 2014 WL 6872636 (Pursuant to ABA Guideline 10.7 and 10.13, predecessor counsel has an ethical duty to share files with former client, who also has shown good cause for discovery of the files under Rule 6, Rules Governing Section 2254, Cases).
29. Relevant ethics opinions and other materials are available at The Continuing Duty, Ethics Materials, https://thecontinuingduty.wordpress.com/ethics-opinions/ (last visited June 8, 2018).
30. See, e.g., Attorney General Holder Announces New Policy to Enhance Justice Department’s Commitment to Support Defendants’ Right to Counsel, U.S. Dept. of Justice (Oct. 14, 2018), available at https://www.justice.gov/opa/pr/attorney-general-holder-announces-new-policy-enhance-justice-departments-commitment-suppoet.
31. See, e.g., David M. Siegel, The Continuing Duty Then and Now, 42 Hofstra L. Rev. 447 (2013); Tigran W. Eldred, Motivation Matters: Guideline 10.13 and Other Mechanisms for Preventing Lawyers from Surrendering to Self-Interest in Responding to Allegations of Ineffective Assistance in Death Penalty Cases, 42 Hofstra L. Rev. 473 (2013); David M. Siegel, The Role of Trial Counsel in Ineffective Assistance of Counsel Claims: Three Questions To Keep In Mind, 33 The Champion 14 (2009); Lawrence J. Fox, Capital Guidelines and Ethical Duties: Mutually Reinforcing Responsibilities, 36 Hofstra L. Rev. 775 (2008); Lawrence J. Fox, Making the Last Chance Meaningful: Predecessor Counsel’s Ethical Duty to the Capital Offender, 31 Hofstra L. Rev. 1181 (2003).