My Reputation Or Your Liberty (Or Your Life): The Ethical Obligations of Criminal Defense Counsel in Postconviction Proceedings

Abstract

This article addresses the legal and ethical obligations of criminal defense attorneys both to former clients and to courts in instances where a convicted former client challenges the conviction on ineffective assistance of counsel grounds. The thesis advanced is that existing ethical rules demand that zealous criminal defense lawyers whose clients have been convicted at trial turn their advocacy efforts towards the setting aside of that conviction, even at the expense of their own professional reputation.

The article has three parts: first, it examines several peculiar aspects of the criminal defense attorney-former client relationship; second, it identifies several existing professional ethics provisions and shows how satisfying each is affected by these aspects; and third, it outlines several obligatory practices incumbent on all criminal defense attorney in this situation.

Keywords: Attorney-client privilege, attorney-client relationship, duty of confidentiality, duty of competent representation, duty of loyalty, duty of zealous representation, ineffective assistance of counsel, postconviction relief, professional ethics