The Continuing Duty in Reality: A Preliminary Empirical Look

55 Amer. Crim. L. Rev. Online 63 (2018)

New England Law | Boston Research Paper No. 18-08

15 Pages Posted: 5 Apr 2015 Last revised: 14 Sep 2018

See all articles by David M. Siegel

David M. Siegel

New England Law | Boston

Tigran Eldred

New England Law | Boston

Date Written: May 11, 2018

Abstract

The continuing duty of criminal defense counsel to their former clients, even when those former clients bring post-conviction actions alleging ineffective assistance of counsel, has existed as a national practice standard in capital cases since at least 1987. In addition to its inclusion in the ABA’s Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases since 1989, duties to former clients exist in state ethics rules as well as the ABA Model Rules of Professional Conduct. The duty has been further operationalized in non-capital litigation through a 2010 ABA formal ethics opinion concerning disclosures by trial counsel to prosecutors in ineffective assistance of counsel (IAC) claims, case law and scholarship. There are no empirical data concerning its operation in practice, and these are difficult to obtain because much of the continuing duty operates through informal practices. This paper describes the results of a brief survey intended to develop these data.

Keywords: Ethics, Counsel, Post-Conviction, Effective, Ineffective, Duty

Suggested Citation

Siegel, David M. and Eldred, Tigran, The Continuing Duty in Reality: A Preliminary Empirical Look (May 11, 2018). 55 Amer. Crim. L. Rev. Online 63 (2018); New England Law | Boston Research Paper No. 18-08. Available at SSRN: https://ssrn.com/abstract=2589637 or http://dx.doi.org/10.2139/ssrn.2589637

David M. Siegel (Contact Author)

New England Law | Boston ( email )

154 Stuart St.
Boston, MA 02116
United States
(617) 422-7270 (Phone)
(617) 422-7453 (Fax)

HOME PAGE: http://www.nesl.edu/clsr/

Tigran Eldred

New England Law | Boston ( email )

154 Stuart St.
Boston, MA 02116
United States
617-368-1433 (Phone)

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