The Established Continuing Duty

Abstract

This brief article traces the development of a new standard of practice for lawyers handling criminal cases: an obligation to assist their former clients, through affirmatively disclosing to subsequent counsel and protecting from disclosure to prosecutors, any information that may assist the former client in attacking his prior conviction – including attacking the work of his prior lawyer. This continuing duty, most recently and expansively recognized in the American Bar Association’s Standards for the Defense Function (4th Ed. 2016), reflects increased understanding of the importance of ensuring effective assistance of counsel, acknowledged in recent state and federal court decisions, opinions of the American Bar Association Committee on Ethics and Professional Responsibility and US Department of Justice policies. These obligations will impact prosecutors and judges, as well as defense counsel, because much of their impact will be in post-conviction proceedings. As there is yet no published commentary for the 4th Edition of the ABA’s Standards for the Defense Function, this article concisely presents the sources, background and contours of this new duty.

Keywords: Criminal Procedure, Post-Conviction Relief, Continuing Duty, Professional Responsibility, Legal Ethics

JEL Classification: K14, K41