The Continuing Duty Then and Now

Abstract

The “new” recognition in the American Bar Association’s 2003 Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases of a continuing duty on the part of defense counsel to safeguard the interests of former clients by facilitating the work of successor counsel was essential to implementing post-conviction review of the effectiveness of their representation – but it was not unprecedented. Over a century before lawyers, often in capital cases, had been discharging just such a continuing duty to former clients and the article traces these historical antecedents. Making the duty in ABA Guideline 10.13 real, however, demanded that practitioners take the steps outlined in it – even when it risked aiding post-conviction claims challenging their own work. This latent duty finally became patent, and was addressed, in a 2010 Formal Ethics Opinion of the ABA’s Standing Committee on Ethics and Professional Responsibility. This Formal Opinion extends beyond capital cases, and the article shows how defender organizations, state bar authorities and, increasingly, trial courts handling post-conviction claims, are responding to it.

Keywords: Ethics, Duty, Ineffective, Effective, Counsel, Assistance, Capital, Defense, Criminal