February 2009, Page 14

The Role of Trial Counsel In Ineffective Assistance of Counsel Claims: Three Questions to Keep in Mind
By David M. Siegel

Whether the constitutional guarantee of effective assistance of counsel is meaningful ultimately depends on the work of criminal defense lawyers at two different times: when initially representing a defendant and later when that former client claims ineffective assistance of counsel (IAC). Even when other participants in the system fail to ensure effectiveness of counsel, it is the criminal defense lawyer’s deficiency that matters.1 This responsibility, to our clients and to the criminal justice system, can produce conflicting ethical obligations even for diligent counsel faced with an IAC claim. There are an infinite variety of ways to be ineffective, but there are three key points at which the conscientious lawyer can act to ensure he or she renders effective assistance consistent with his or her ethical obligations, and that the former client’s rights to effective assistance are protected. Counsel should consider these three questions:
  • Before the engagement: Are you qualified to competently and zealously represent this client in this case?
  • During the engagement and the representation: Are you in any way unethically limiting the client’s ability to pursue an IAC claim?
  • At the end of the representation: Have you prepared, preserved, and provided the file in a way that enables successor counsel to meaningfully evaluate a claim of IAC?

This article briefly reviews how the significance of IAC claims has changed in the past decade and then examines these three questions in detail.

Ineffective Assistance: The Diligent Lawyer’s Dilemma
A postconviction claim of IAC presents conflicting ethical demands for a criminal defense lawyer.2 Counsel have continuing ethical obligations to a former client, present ethical obligations to the court, and understandable and practical concerns for their own professional reputation and potential exposure to civil liability.

The context in which most criminal defense lawyers meet IAC claims must be candidly acknowledged. In theory, IAC claims, like bar discipline or malpractice liability, ensure some measure of quality of representation for criminal defendants. They can be a much more meaningful method of enforcing rights than bar discipline or malpractice liability, at least for incarcerated defendants, because IAC relief can include setting aside a conviction or sentence.

In practice, since IAC claims are brought collaterally by successor counsel, and the evidence for IAC claims — what counsel did or did not do, how and, most importantly, why — is in the custody and control of the subject of the claim, counsel’s ethical obligations to collect, record, preserve, and forward materials related to the case to successor counsel must be recognized. Difficult as it may be to accept, a lawyer’s job is not only to thoroughly document what, how, and why he or she defended the case in a certain way, but it also extends to turning these materials over to a former client for the former client’s use in bringing an IAC claim. In order to fully discharge one’s ethical obligations related to a claim of IAC concerning representation, a lawyer must think about a potential claim for IAC before the representation even begins. Recognizing one’s ethical obligations that will arise if a claim for IAC is made is both ethically appropriate and sound professional judgment.

IAC: A Decade of Change
While the test for ineffective assistance remains that established in Strickland v. Washington,3 the professional and constitutional obligations of a criminal defense lawyer to the client during and after the representation have become clearer and dramatically more significant in the past decade. Defense counsel’s professional obligations have been more specifically delineated in the ABA’s 2003 promulgation of its revised Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases.4 Although the Guidelines explicitly “apply” (insofar as ABA Guidelines apply to anything) only to cases in which a death sentence is legally possible,5 many of its provisions apply with equal force in non-capital cases. The Guidelines set forth obligations before, during, and after representation, including during the postconviction process.6 Obligations to former clients have also been more clearly and uniformly specified through adoption in virtually all jurisdictions of provisions of the ABA’s 2002 Model Rules of Professional Conduct explaining counsel’s responsibilities on termination of representation.7

While neither the Guidelines nor the Model Rules have the force of law, U.S. Supreme Court decisions recognizing the ABA Performance Standards as “guides” to reasonable professional practices by counsel,8 and the Court’s use of performance standards to assess the reasonableness of investigation by counsel,9 have made violations of the bar’s professional standards ethical violations and constitutionally ineffective assistance. Some have optimistically suggested that the Court’s use of ABA standards effectively implemented a standards-based or “checklist” regime for assessing ineffective assistance,10 although in most cases demonstrating prejudice is still essential for a valid IAC claim.

This potentially positive development comes against many significant criticisms of the system of ensuring effective assistance through claims for IAC. These include general criticism of the Strickland standard as too low, too rarely enforced, too easily circumvented through going directly to the prejudice prong,11 and largely unenforceable because IAC claims generally cannot be heard on direct appeal.12

The significance of a criminal defense lawyer’s obligations to his or her client has dramatically increased since the amendments to 28 U.S.C. § 2254 enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, a petition for a writ of federal habeas from a state criminal conviction adjudicated on the merits in state court is available only for decisions that were “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court” or that are “based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.”13 In terms of a state court decision applying Federal law, including the Sixth Amendment’s guarantee of effective assistance of counsel, the state court’s application must be “objectively unreasonable.”14

Finally, the significance of ensuring effective assistance has been highlighted by over 200 postconviction DNA exonerations. Each DNA exoneration demonstrates a specific failure or failures of the criminal justice system, and reaffirms the importance of thorough, aggressive defense work.

Three Questions To Keep in Mind

I. Are you qualified to competently and zealously represent the client?
Having the necessary expertise to handle a given type of case is a prerequisite to “competent” representation,15 but competence also requires that you have no conflict from present16 or former representation,17 and no personal feelings that would preclude zealous advocacy on your client’s behalf. Having handled this kind of case before does not necessarily mean you are qualified to zealously represent this client in this case. Representing, or having represented, defendants charged with very similar offenses investigated by the same law enforcement authority, or even the same law enforcement personnel, raises the prospect of present or former clients who may be witnesses, cooperating individuals, or both.

A. Conflicts Between Clients
Conflicts between interests of present clients and new clients can produce divided loyalties in a lawyer that is unprofessional conduct and can deny the Sixth Amendment right to counsel and due process.18 An actual, as opposed to potential, conflict between clients is a structural defect in the assistance of counsel that, if brought to the attention of the trial court, is grounds for automatic reversal without any showing of prejudice.19 However, a potential conflict produces neither an ethical problem nor ineffective assistance, and the trial court need not even inquire into it.20 Moreover, if counsel does not object or otherwise bring the conflict to the court’s attention, a defendant will not be able to obtain relief later unless the defendant can show that “an actual conflict of interest adversely affected his lawyer’s performance.”21

An informed client can waive a concurrent conflict. A valid waiver requires that each client with a concurrent conflict is properly informed of the conflict — meaning the lawyer has given them “adequate information and explanation about the material risks and reasonably available alternatives”22 — and that each consents in writing to the representation.23 Additionally, the lawyer must reasonably believe he or she can provide “competent and diligent” representation to each such client, the representation must not be barred by law, and it must not involve asserting a claim by one client against another in the same litigation or other proceeding before a tribunal.24

Interests of one client can conflict with the representation of another even if the clients’ legal claims or defenses are not directly adverse. For example, “discrepancies in the parties’ testimony,” “incompatibility in positions,” or “substantially different possibilities of settlement of the claims or liabilities in question” all present potential conflicts between clients.25 This range of potentially conflicting situations is generally understood to severely discourage representing co-defendants in criminal cases. “The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one co-defendant.”26

B. Conflicts Between Clients Can Render Assistance Ineffective
When there is an “actual conflict” in the representation of one client with the interests of another, such that one client is effectively deprived of counsel entirely because of the lawyer’s obligations to the other client, the representation is per se ineffective.27 This situation inherently creates a risk of an unreliable result, so a defendant need not satisfy the prejudice prong of Strickland.28 What’s an “actual conflict” between a new client and a present client so profound it entirely deprives the new client of representation? Until recently, representing a new client charged with murdering a present client might have been thought to present about as “directly adverse”29 an interest as possible that would prevent the new client from having effective assistance of counsel.

However, in Mickens v. Taylor30 the U.S. Supreme Court narrowed the circumstance of an “actual conflict” to conflicts that counsel timely brings to the attention of the trial court and objects to,31 or a defendant can demonstrate “actually affected the adequacy of his representation.”32 Mickens was a capital defendant whose trial counsel, Saunders, also represented Mickens’ juvenile victim at the time of his death. Saunders never disclosed his representation of the juvenile to Mickens or to the court. The trial judge who appointed Saunders to represent Mickens was, or should have been, aware of his representation of the juvenile — since she had appointed Saunders to represent the juvenile two weeks earlier and had terminated his representation of the juvenile the day before appointing him to represent Mickens.

By a 5-4 decision, the Court held that unless “a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.”33 Saunders testified at Mickens’ habeas proceeding there had been no effect on his representation of Mickens from his brief representation of the victim. Given Saunders’ testimony, the trial court’s failure to inquire was only a failure to inquire into a potential rather than an actual conflict, so five members of the Court found that there had been no prejudice to Mickens.34

Mickens addresses when a court must inquire into a potential conflict. As to the underlying question, whether representing defendant and victim poses an actual conflict, Mickens has not been followed by state courts interpreting their own rules of professional conduct or state constitutions. The New Jersey Supreme Court ruled in a virtually identical case that a law firm representing a murder victim allegedly killed by another client of the firm had an actual conflict for the two weeks before it could terminate its representation of the decedent that precluded representation of the defendant despite his desire for its representation.35 Representation of both the decedent and the alleged murderer was a concurrent conflict, because the defendant client’s interests were directly adverse to the general interests of the decedent client in his killer being brought to justice and the more specific interests he or his estate might have in bringing a civil action against the defendant.36

Similarly, applying the more defendant-protective standard of the Massachusetts Declaration of Rights, which requires no showing of prejudice when there is a genuine conflict of interest, the Massachusetts Supreme Judicial Court held in Commonwealth v. Martinez37 that counsel’s representation of a prosecution witness on a single disorderly conduct charge while representing a murder defendant posed a “potential for a serious conflict of interests” that deprived defendant of effective assistance under the state constitution.38

Mickens highlights the extraordinary impact counsel’s approach to her own ethical obligations can have on the vindication of a defendant’s rights. If counsel perceives a conflict between the interest of a present client and a new client, makes the conflict known to the court and objects to the representation, a judge who fails to inquire into the asserted conflict ensures automatic reversal of any conviction.39 However, if counsel perceives a conflict but does not raise the issue, and certainly if counsel does not object to the representation, even if the conflict between the interests of the clients is literally fatal, there will be no attacking the conviction unless the defendant can show prejudice. A prudent approach after Mickens would be for counsel to object to representation that carried a potential for a serious conflict of interest at any stage of the proceeding between one client and another, and to reiterate the objection with any additional fact or issue arising in the case that increases the risk.

II. Does your representation protect the client’s right to pursue a future IAC claim?
Representation now can eliminate a client’s right to pursue a future IAC claim, and a troubling development in the past decade has been the rise of prosecutorial demands for waivers of postconviction rights as part of plea agreements.40 Waivers of postconviction rights are unethical if they do not include exceptions for claims based upon ineffective assistance in the plea agreement, prosecutorial misconduct and — if the plea included a sentencing decision — certain sentencing errors, and if they were entered without advice from independent counsel.41 Despite opinions of four state ethics bodies that unlimited waivers of postconviction rights are unethical, few courts have followed this reasoning.

A. Conflicts in Postconviction Waivers
Counsel who advise a client to waive postconviction rights as part of a plea agreement face an ethical conflict similar to that of lawyers who advise their clients to waive future legal malpractice claims. It is unethical for a lawyer to “make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement.”42 While a claim for malpractice is not identical to a claim of IAC, it would be virtually impossible for a malpractice plaintiff to successfully maintain an action against his criminal defense lawyer if he could not also show that the conduct constituted at least IAC.43 Because of this similarity, four state ethics bodies have explicitly analogized the two situations, and held that advising a client to enter an agreement prospectively limiting the right to bring a postconviction action for ineffective assistance is unethical unless the client received independent advice on the matter.

As unethical conduct, advising a client to enter a plea agreement that requires him to waive rights to seek postconviction relief without preserving rights to bring a postconviction challenge based upon IAC, prosecutorial misconduct, or constitutional violations during sentencing is also constitutionally ineffective assistance.44 It is also unethical for a prosecutor to seek such an agreement, both because it is an effort to induce the defense lawyer to violate the rules45 and because it independently violates special ethical obligations of the prosecutor as “a minister of justice whose duty is to seek justice rather than merely to advocate for the state’s victory at any given cost.”46

Postconviction waivers that do not provide exceptions for IAC in the plea agreement itself present an inherent conflict, without regard to the quality of the lawyer’s representation in the case, because they effectively insulate the plea, as well as the actions of defense counsel and the prosecutor, from ever being reviewed. This situation violates defense counsel’s duty of competent representation47 as well as the prohibition against limiting liability to a client for malpractice.48

B. State Ethics Bodies’ Consideration of Postconviction Waivers
Plea agreements waiving postconviction rights to bring claims for IAC have been considered by the regulatory bodies for lawyers’ ethics in five states.49 Four of these bodies — in North Carolina, Ohio, Tennessee, and Vermont — have explicitly found such agreements unethical. Only one state ethics regulatory body (Arizona’s) has approved of these agreements, by a divided vote, on a theory distinguishing the ethical prohibition on limiting malpractice liability from a limitation on a postconviction challenge.50

In 1994, the Tennessee Board of Professional Responsibility opined that “neither a prosecutor or [sic] a defense counsel can ethically include a provision in a plea agreement that waives the defendant’s right to allege ineffective assistance of counsel or prosecutorial misconduct.”51 The Tennessee Board found such agreements would violate DR 6-102(A) (“A lawyer shall not attempt to exonerate himself from or limit his liability to his client for his personal malpractice”), the forerunner of Tenn. Sup. Ct. R. 8, RPC 1.8(h). In 1992, the North Carolina State Bar explained that a defense attorney and prosecutor may ethically execute a plea agreement in which a client’s rights to appellate and postconviction review are waived, “except to the extent that the plea agreement purports to waive defendant’s rights to appellate and postconviction remedies based on allegations of (a) ineffective assistance of counsel or (b) prosecutorial misconduct.”52

In 1995, the Vermont Bar Association’s Professional Responsibility Committee issued an opinion “that an attorney should not recommend to a defendant in a criminal case that the defendant enter into a plea agreement that contains a provision limiting the client’s right to assert a claim of ineffective assistance of counsel in a postconviction proceeding.”53 Most recently, the Ohio Board of Commissioners on Grievances and Discipline opined that, given the causal relationship between a claim for ineffective assistance and a malpractice action, “a plea agreement provision that waives appellate or postconviction claims of ineffective assistance of counsel does constitute an attempt to limit the liability of the criminal defense attorney for personal malpractice.”54 It also found that a prosecutor seeking such an agreement would be engaging in conduct prejudicial to the administration of justice.55

C. Judicial Consideration of Postconviction Waivers
Courts examining the validity of postconviction waivers that purport to waive all rights to bring a claim for IAC have read into such waivers exceptions for claims of IAC if these go to ineffectiveness in the plea itself. “Whether the waiver is enforceable “turns on ‘whether the ineffective assistance tainted the voluntariness of the plea or the waiver agreement itself.’”56 Every federal circuit to examine the question has held postconviction waivers may be valid if they are knowing and voluntary, unless they would work a miscarriage of justice. This is the same standard courts have applied to waivers of appeal generally.57 State courts have also upheld waivers of postconviction rights, provided they do not also waive the right to challenge the effectiveness of advice concerning entry of the plea.58

III. Have you prepared and preserved the file, and provided it to successor counsel (or the former client) in a way that enables meaningful evaluation of an IAC claim?
The client’s file is critical evidence of what was done — or not done — in the representation. While ownership of the file after the representation is governed by law, and may be in the lawyer,59 the client, or both, access to the file is a matter of ethics.60 As the ethics bodies of several jurisdictions have held, a former client is presumptively entitled to access his entire file.61 A lawyer is ethically obligated to provide access even if he or she has been unfairly discharged by the former client. Both the Restatement of the Law Governing Lawyers and the ethics rules of all jurisdictions provide that counsel must afford former clients access to their files, although the exceptions under each vary.

A. Restatement Standard for Former Client’s File Access
Maintaining the former client’s file and providing access to it are part of a lawyer’s continuing ethical obligation to a former client. The Restatement (Third) of the Law Governing Lawyers explains, “On request, a lawyer must allow a client or former client to inspect and copy any document possessed by the lawyer relating to the representation, unless substantial grounds exist to refuse.”62 This obligation, according to the Restatement, imposes an affirmative duty on counsel to provide a former client with his or her file when the representation ends.

Unless a client or former client consents to no delivery or substantial grounds exist for refusing to make delivery, a lawyer must deliver to the client or former client, at an appropriate time and in any event promptly after the representation ends, such originals and copies of other documents possessed by the lawyer relating to the representation as the client or former client reasonably needs.63

1. ‘Substantial Grounds’ To Withhold Access
Very few things constitute “substantial grounds” to withhold a former client’s access to the file. Examples include either a conflicting ethical obligation, such as a duty of confidentiality owed to another client, part of whose papers were mixed with those of the former client,64 or issues of earned but unpaid fees. Increasingly, jurisdictions have held that a lawyer’s retention of a former client’s file as a means of securing payment for fees earned is unethical. It is not a “substantial ground” to withhold from a former client access to his or her file on the ground that he or she will use this access to bring a claim for ineffective assistance of counsel.

2. Work Product
“Work product,” a lawyer’s unfinished, working notes, research and impressions, presents two separate types of problems. First, a lawyer may record her impressions of a client or case for internal use, or do research on an issue for her own use (such as potential malpractice liability to a client), that may be necessary to set down but which the lawyer may wish to keep from the client. Second, a client who takes a lawyer’s nearly completed work and provides it to a new lawyer could leave counsel without compensation for work done. The traditional approach to this latter problem has been a retaining lien, under which the lawyer may keep the uncompensated work product until she has been paid. This, however, can severely prejudice the former client, which runs afoul of the duty to avoid prejudicing the interest of a former client.

The majority of jurisdictions now presume that the client may access the entire file,65 although a minority recognizes a distinction between “end product,” which a former client may access and “work product,” which a lawyer may ethically restrict from the former client.66 Several jurisdictions have explicitly considered and rejected the minority view.67

B. Ethics Rules Concerning Duty to Provide Former Clients Access to File
The ethics rules of every state and the District of Columbia impose a mandatory duty on attorneys to deliver a client’s “papers and property” upon termination of the representation as part of the duty to assist a client upon withdrawal. Most track the language of the ABA’s Model Rules of Professional Conduct, Rule 1.16(d),68 which provides:

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.69

These provisions of paragraph (d) are substantially identical to those of DR 2-110(A)(2) and (3) of the former ABA Model Code of Professional Responsibility.70 Those jurisdictions whose ethics rules are not based on the Model Rules (California,71 Maine,72 and New York73) also impose a similar duty.

The governing principle in all these rules is mandatory protection of the client’s interest. As the commentary to Rule 1.16 of the Model Rules makes clear, “Even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client.”74 Where there is discretion to be exercised, avoiding prejudice to the interests of the former client is controlling. The former client’s right to access his or her file exists whether the files are open or “closed.”75

Model Rule 1.16(d) raises two questions:

(1) What are the “papers and property” to which the client is entitled?

(2) When, “to the extent permitted by other law,” may a lawyer retain papers relating to the client?

While it easy to formulate these as separate questions, they often become conflated. The principal issue concerning what is included in “papers and property” involves work product: Do the “papers and property” to which the client is entitled include such things as notes and research, unfinished, incomplete or unfiled documents — which may be critical evidence for an IAC claim? The principal issue concerning when a lawyer may retain papers relating to a client involves unpaid fees: May the lawyer take a retaining lien in the papers and withhold them until the client pays? Work product may be incomplete because the client did not pay for it, and is even sometimes defined as material for which the client has not paid.

1. ‘Papers and Property’ to Which Client Is Entitled
The “papers” of the client are typically the material in the client’s file. What is, or should be, in a client’s file is not susceptible to precise definition because every case is different.76 As noted above, the lawyer’s authority to retain property of the client is principally a legal, rather than ethical, matter, although some ethics bodies have opined that it is unethical to do so. There is relatively little law concerning what should be part of a client’s file.

While the contents of a client’s file naturally will differ with the case, several jurisdictions whose ethics rules are based on the Model Rules specify, either in their rules77 or accompanying commentary,78 what materials must be provided a former client. Some state ethics bodies have also addressed the issue.

A lawyer’s failure to promptly turn over the file to a former client, or to successor counsel upon the client’s direction, is a basis for disciplinary action.79 Failure to turn over the file to the client after termination of representation can be a disciplinary violation even without a demand for the file from the client.80 Failing to promptly turn over the client’s file can prejudice the client’s ability to pursue remedies (such as IAC), which could violate the lawyer’s obligation to “reasonably protect the client’s interests” even as the representation is being terminated.81 This obligation exists “even if the lawyer has been unfairly discharged by the client.”82

The ethics rules of six jurisdictions (Massachusetts, Minnesota, Montana, Ohio, Tennessee, and Virginia) define what materials must be provided a former client, and each directly addresses work product. The rules of these jurisdictions treat both aspects of work product (i.e., its unfinished and potentially uncompensated nature), and most explicitly bar retaining work product, even for which the lawyer was not paid, if doing so would prejudice the former client’s interest. They all specifically require turning over materials that would be highly relevant in assessing an IAC claim.

Massachusetts’ ethical rules, for example, provide that a lawyer must, within a reasonable time following the client’s request, make available all pleadings and papers filed by or with any court or served by or on any party, including “all investigatory or discovery documents for which the client has paid the lawyer’s out-of-pocket costs, including but not limited to medical records, photographs, tapes, disks, investigative reports, expert reports, depositions, and demonstrative evidence.” The former client is entitled to the lawyer’s “work product” for which he has paid, defined as “documents and tangible things prepared in the course of the representation of the client by the lawyer or at the lawyer’s direction by his or her employee, agent, or consultant [other than completed or filed documents].” Examples of work product include “legal research, records of witness interviews, reports of negotiations, and correspondence.
However, “notwithstanding [anything in this rule to the contrary], a lawyer may not refuse, on grounds of nonpayment, to make available materials in the client’s file when retention would prejudice the client unfairly.”83

Minnesota’s ethical rules similarly distinguish between litigation materials that have been filed or served, which must be provided the client regardless of whether the former client has paid the fees, and “pleadings, discovery, motion papers, memoranda and correspondence which have been drafted, but not served or filed” for which the client has not paid. These need not be provided.84 However, Minnesota’s ethics rules also provide, “A lawyer shall not condition the return of client papers and property on payment of the lawyer’s fee. …”85

Tennessee’s ethics rules permit a lawyer to retain work product for which the lawyer has not been compensated “to the extent permitted by other law but only if the retention of the work product will not have a materially adverse affect on the client with respect to the subject matter of the representation. …”86 Ohio’s ethics rules explain that the “client’s papers and property” which shall be promptly delivered to the client “may include correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert reports, and other items reasonably necessary to the client’s representation.”87 The Ohio State Bar Association has explained: “Materials acquired or prepared for the purposes of representing the client and other materials that might prove beneficial to the client should be returned. These materials include but are not limited to all significant correspondence, investigatory documents and reports the client has paid for, filed or unfiled but prepared pleadings and briefs, and all materials supplied by the client.”88

Virginia’s ethics rules detail that the lawyer must provide the former client with specified work product regardless of whether the lawyer has been paid for the work, including “investigative reports, legal memoranda, and other attorney work product documents prepared or collected for the client in the course of the representation; [and] research materials.” While the lawyer may bill and seek to collect the costs of copying, “the lawyer may not use the client’s refusal to pay for such materials as a basis to refuse the client’s request.”89

The ethics rules of Montana and Virginia carve out work product exceptions for what must be provided a former client. Virginia’s rules make an exception for “documents intended only for internal use, such as memoranda prepared by the lawyer discussing conflicts of interest, staffing considerations, or difficulties arising from the lawyer-client relationship.”90 Montana’s ethics rules provide a lawyer “is not obliged to deliver to a client or former client papers or materials personal to the lawyer or created or intended for internal use by the lawyer. …”91

Three jurisdictions (Arizona, North Carolina, and Utah) specify in commentary to their ethics rules what should be provided the former client, and all three identify a category of internal documents that need not be provided. Commentary to Arizona’s ethics rules describes the “file” to which the client is entitled to “include (without limitation) pleadings, legal documents, evidence, discovery, legal research, work product, transcripts, correspondence, drafts, and notes, but not internal practice management memoranda.”92 Commentary to North Carolina’s ethics rules provides particularly relevant guidance in the context of an IAC claim: “Generally, anything in the file that would be helpful to successor counsel should be turned over.” The commentary does specify, however, that “the lawyer’s personal notes and incomplete work product need not be released.”93 Commentary to Utah’s ethics rules provides that “[t]he client file generally would not include the following: the lawyer’s work product such as recorded mental impressions; research notes; legal theories; internal memoranda; and unfiled pleadings.”94

In a criminal case that was tried, the transcript is naturally essential for reviewing a potential IAC claim. The Comments to one state’s ethics rules specify,95 and at least one jurisdiction’s ethics body has held, that when the transcript was prepared for an indigent client at government expense, the transcript belongs to the former client and must be provided him.96 Similarly, depositions that exist in the case must be provided. 97

2. Retaining Client Papers
When may a lawyer retain papers relating to the client “to the extent permitted by law”? The principal exception to the obligation to turn over the file is in cases of unpaid fees, as some jurisdictions allow lawyers to assert a lien on a client’s file to obtain earned but unpaid fees. This lien may be common law98 or statutory,99 and its scope (i.e., whether it reaches the client’s papers or file) is a legal question rather than an ethical matter.100 Asserting a “retaining lien” was recognized as an exception to the general ethical prohibition against a lawyer’s acquiring an interest in the property of a client.101

Against the legal power to assert a lien, however, is the real prospect that assertion of a lien could prejudice the client’s rights, which several states’ rules recognize.102 Assertion of the lien could conflict with the obligation to avoid prejudice to the client’s rights in withdrawal from representation, and several state ethics committees have thus advised against its assertion.103 The ethics rules of Minnesota,104 Missouri,105 and North Carolina prohibit the practice.106 A few courts have specifically distinguished the context of a criminal defendant — even one who owes his former lawyer fees — seeking his file from the former lawyer as opposed to that of civil cases.107

3. Cooperating With Successor Counsel
Have you cooperated with successor counsel in an ethically appropriate way, and ensured that you have continued to safeguard your former client’s confidences and secrets? Failure to cooperate with successor counsel is a violation of an attorney’s ethical obligations in the termination of representation.108 Even “office files” as opposed to “client files” may have information that should be disclosed to successor counsel.109 The ABA’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases110 set these obligations out, for the first time, with specificity:

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.
No principled reasons distinguish counsel’s obligations in non-capital cases from these.

Conclusion
At three points in a case — before undertaking the representation, during and especially when resolving a case by a plea, and after the representation — counsel should assess whether his or her actions affect the defendant’s ability to ensure effective assistance of counsel. Carefully considering conflicts between clients, giving up the ability to bring an IAC claim through postconviction waivers, and maintaining and delivering the file to successor counsel, can protect a defendant’s rights to effective assistance of counsel.

Notes
1. Mickens v. Taylor, 532 U.S. 162, 177 (2002) (Kennedy, J., concurring) (“As the Sixth Amendment guarantees the defendant the assistance of counsel, the infringement of that right must depend on a deficiency of the lawyer, not of the trial judge.”).
2. Among the relatively few articles on this topic: Lawrence J. Fox, Making the Last Chance Meaningful: Predecessor Counsel’s Ethical Duty to the Capital Defendant, 31 Hofstra L. Rev. 1181 (2003); 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 (1998).
3. 466 U.S. 668, 688 (1984).
4. ABA, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, 31 Hofstra L. Rev. 913 (2003) (revised edition published Feb. 2003; approved by ABA House of Delegates Feb. 10, 2003; commentary published Oct. 24, 2003).
5. Id., Guidelines §1.1, B., 31 Hofstra L. Rev. at 919.
6. Id., Guidelines §10.13 (The Duty to Facilitate the Work of Successor Counsel), 31 Hofstra L. Rev. at 1074.
7. Rule 1.16(d), ABA’s Model Rules of Professional Conduct (2002) (hereinafter “Model Rules”).
8. Rompilla v. Beard, 545 U.S. 374, 387 (2005) (“we long have referred to these ABA Standards as ‘guides to determining what is reasonable,’” quoting Wiggins v. Smith, 539 U.S. at 524, quoting Strickland v. Washington, 466 U.S. at 688). Wiggins v. Smith, 539 U.S. 510, 522 (2003) (citing Strickland v Washington, “Prevailing norms of practice as reflected in American Bar Association standards and the like ... are guides to determining what is reasonable.”). See also Williams v. Taylor, 529 U.S. 362, 396 (2000) (citing 51 pages of ABA Standards for Criminal Justice).
9. Wiggins v. Smith, id., 539 U.S. at 524 (citing ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases and ABA Standards for Criminal Justice).
10. 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, Cornell Law School research paper No. 07-019 (available at http://ssrn.com/abstract=1024307).
11. Adele Bernhard, Take Courage: What the Courts Can Do to Improve the Delivery of Criminal Defense Services, 63 U. Pitt. L. Rev. 293, 346 (2002) ( “[A]ll who have seriously considered the question agree that Strickland has not worked either to prevent miscarriages of justice or to improve attorney performance.”); William S. Geimer, A Decode of Strickland’s Tin Horn: Doctrinal and Practical Undermining of the Right to Counsel, 4 Wm. & Mary Bill Rts. J. 91, 94 (1995) (“Strickland has been roundly and properly criticized for fostering tolerance of abysmal lawyering.”); Kim Taylor-Thompson, Tuning Up Gideon’s Trumpet, 71 Fordham L. Rev. 1461, 1465 (2003) (“[T]he ruling has proved disabling to the right to effective assistance of counsel in practice.”). McFarland v. Scott, 512 U.S. 1256, 1259 (1994) (Blackmun, J., dissenting) (“Ten years after the articulation of [the Strickland] standard, practical experience establishes that the Strickland test, in application, has failed to protect a defendant’s right to be represented by something more than ‘a person who happens to be a lawyer.”’).
12. Eve Brensike Primus, Structural Reform in Criminal Defense: Relocating Ineffective Assistance of Counsel Claims, 92 Cornell L. Rev. 679 (2007) (recommending states adopt procedures requiring appointment of new counsel, giving them six months to reinvestigate case, and allowing them to raise IAC claims on direct appeal).
13. 28 U.S.C. § 2254(d)(1) & (2).
14. Williams v. Taylor, 529 U.S. at 409.
15. Rule 1.1, Model Rules (“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”).
16. Rule 1.7(a), Model Rules (“ … [A] lawyer shall not represent a client if the representation involves a concurrent conflict of interest [that] exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”). The rule does provide exceptions. See Rule 1.7(b).
17. Rule 1.9, Model Rules.
18. Glasser v. United States, 315 U.S. 60, 70 (1942) (“‘Assistance of Counsel’ guaranteed by the Sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer simultaneously represent conflicting interests.”).
19. Holloway v. Arkansas, 435 U.S. 475, 488 (1978) (“whenever a trial court improperly requires joint representation over timely objection reversal is automatic”).
20. Cuyler v. Sullivan, 446 U.S. 335, 346 (1980) (defendant separately tried from his co-defendants but jointly represented suffered from no actual conflict despite deciding not to testify in part because of effect on co-defendants’ subsequent trials since there were plausible reasons for not testifying).
21. Cuyler v. Sullivan, 446 U.S. 335, 350 (1980); followed in Burger v. Kemp, 483 U.S. 776, 789 (1987); Mickens v. Taylor, 535 U.S. 162 (2002). Even one lawyer handling multiple roles in a case does not produce a per se conflict. See State v. Joanna V., 134 N.M. 232, 75 P.3d 832, 836-37 (N.M. App. 2003) (lawyer representing juvenile in delinquency proceeding did not have an actual conflict by also serving as guardian ad litem for same juvenile in neglect and dependency proceeding).
22. Rule 1.0(e), Model Rules.
23. Rule 1.7(b)(4), Model Rules.
24. Rule 1.7(b), Model Rules.
25. Rule 1.7(a), Model Rules (Comment) ¶ 23 (“Conflicts in Litigation”).
26. Id.
27. United States v. Cronic, 466 U.S. 648, 658-59 (1984); Geders v. United States, 425 U.S. 80, 91 (1976).
28. Strickland v. Washington, 466 U.S. at 694 (defendant ordinarily must demonstrate a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” to obtain relief).
29. Rule 1.7(a)(1), Model Rules (“A concurrent conflict exists if: the representation of one client will be directly adverse to another client.”).
30. 535 U.S. 162 (2002).
31. Holloway v. Arkansas, 435 U.S. 475 (1978) (automatic reversal when counsel objects to concurrent representation of co-defendants producing actual conflict).
32. Mickens, 532 U.S. at 168 (citing Cuyler v. Sullivan, 446 U.S. 335, 348-49 (1980)).
33. Mickens v. Taylor, 532 U.S. 162, 175 (2002) (citing Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)).
34. Id., 532 U.S. at 173-74.
35. State ex rel. S.G., 175 N.J. 132, 814 A.2d 612 (2003).
36. Id., 814 A.2d at 619.
37. Commonwealth v. Martinez, 425 Mass. 382, 681 N.E.2d 818 (1997).
38. Id., 681 N.E.2d at 824.
39. Holloway v. Arkansas, 435 U.S. at 488.
40. See Douglas A. Morris, Waiving an Ineffective Assistance of Counsel Claim: An Ethical Conundrum, 27 The Champion 34 (December 2003) (“Morris”).
41. Typical provisions include, for example, those at issue in United States v. Shedrick, 493 F.3d 292, 295 (3d Cir. 2007), in which the defendant’s plea included:
10. In exchange for the undertakings made by the government in entering this plea agreement, the defendant voluntarily and expressly waives all rights to appeal or collaterally attack the defendant’s conviction, sentence, or any other matter relating to this prosecution, whether such a right to appeal or collateral attack arises under 18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C. § 2255, or any other provision of law.
a. Notwithstanding the waiver provision above, if the government appeals from the sentence, then the defendant may file a direct appeal of his sentence.
b. If the government does not appeal, then notwithstanding the waiver provision set forth in paragraph 10 above, the defendant may file a direct appeal but may raise only claims that:
i. the defendant’s sentence exceeds the statutory maximum; or
ii. the sentencing judge erroneously departed upward from the otherwise applicable sentencing guideline range.
42. Rule 1.8(h), Model Rules, provides:
(1) A lawyer shall not: make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement; or (2) settle a claim or potential claim for such liability with an unrepresented client or former client unless the person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.
43. John Wesley Hall, Professional Responsibility in Criminal Defense Practice, (3d ed. 2005) § 31:16 at 1171 (“Where the criminal defendant has litigated the issue alleged to be negligence on the part of counsel in the underlying criminal case or collateral proceedings, he or she may be barred by collateral estoppel from litigating a malpractice claim on the same issue.”).
44. Morris, supra, note 40.
45. Rule 8.4, Model Rules (“It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.”).
46. ¶1, Comments to Rule 3.8, Model Rules.
47. Rule 1.1, Model Rules.
48. Rule 1.8(h)(1), Model Rules.
49. See Arizona State Bar Committee on the Rules of Professional Conduct, Op. 95-08 (1995); North Carolina State Bar Ethics Comm’n., Formal Op. RPC 129 (2d Revision) (Approved Jan. 15, 1993); Ohio Board of Commissioners on Grievances and Discipline Opinion 2001-6 (Dec. 7, 2001); Tenn. Bd. Prof’l. Resp., Advisory Op. 94-A-549 (1994); Vermont Bar Association Advisory Ethics Opinion 95-04 (1995).
50. Arizona State Bar Committee on the Rules of Professional Conduct, Op. 95-08 (1995).
51. Tenn. Bd. Prof’l. Resp., Advisory Op. 94-A-549 (1994).
52. North Carolina State Bar Ethics Comm’n., Formal Op. RPC 129 (2d Revision) (Approved Jan. 15, 1993).
53. Vermont Bar Assn. Advisory Ethics Opinion 95-04.
54. Ohio Board of Commissioners on Grievances and Discipline, Opinion 2001-6 at 2-3 (Dec. 7, 2001).
55. Id. at 3.
56. United States v. Cockerham, 237 F.3d 1179, 1184 (10th Cir. 2001) (quoting United States v. Vasquez, 194 F.3d 1321 (10th Cir. 1999). See also Garcia-Santos v. United States, 273 F.3d 506, 509 (2nd Cir. 2001); United States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005); United States v. White, 307 F.3d 336, 343 (5th Cir.2002) (IAC “survives a waiver of appeal only when the claimed assistance directly affected the validity of that waiver or the plea itself. … [A]n impermissible boot-strapping arises where a waiver is sought to be enforced to bar a claim that the waiver itself — or the plea agreement of which it was a part — was unknowing or involuntary.”); Jones v. United States, 167 F.3d 1142 (7th Cir. 1999) (“Justice dictates that a claim of ineffective assistance of counsel in connection with the negotiation of a cooperation agreement cannot be barred by the agreement itself — the very product of the alleged ineffectiveness.”); De Roo v. United States, 223 F.3d 919, 924 (8th Cir. 2000) (“A defendant’s plea agreement waiver of the right to seek Section 2255 post-conviction relief does not waive defendant’s right to argue, pursuant to that section, that the decision to enter the plea was not knowing and voluntary because it was the result of ineffective assistance of counsel.”); Washington v. Lampert, 237 F.3d 864, 870-71 (9th Cir. 2005) (waiver of right to bring federal habeas petition under § 2254 challenging state conviction unenforceable as to IAC claim challenging voluntariness of plea); Williams v. United States, 396 F.3d 1340, 1342, note 2 (11th Cir. 2005).
57. United States v. Miliano, 480 F.3d 605 (1st Cir. 2007) (waiver of appeal rights on sentence cannot waive court’s subject matter jurisdiction to consider whether plea was knowing and voluntary); United States v. Gwinnett, 483 F.3d 200, 203-204 (3rd Cir. 2007) (same); United States v. Caruthers, 458 F.3d 459, 472 (6th Cir. 2006) (same).
58. Stahl v. State, 972 So.2d 1013, 1014 (Fla.App. 2 Dist., 2008) (citing United States v. Cockerham, supra).
59. State Bar of Mich. Ethics Op. R-019 (Aug. 4, 2000), 2000 WL 33716931, *4 (file presumptively belongs to lawyer, not client, though portions may belong to client).
60. State Bar of Mich. Ethics Op. R-019 (Aug. 4, 2000), 2000 WL 33716931, *4 (“ownership of materials in a lawyer’s or law firm’s file is a matter of law, not ethics”).
61. Alaska Bar Assn. Ethics Op. 2003-3 (May 6, 2003), 2003 WL 21292063, *1 (“the attorney must presumptively accord the client access to the entire file unless substantial grounds exist to refuse”); Illinois State Bar Assn. Opn. No. 95-02 (July 14, 1995), 1995 WL 874714, *2 (“client cannot be denied access to his or her file”); State Bar of Mich. Ethics Op. R-019 (Aug. 4, 2000), 2000 WL 33716931, *4 (“The client’s right is, in general, one of access, not custody or possession.”); N.Y. State Bar Assn. Comm. Prof. Ethics Op. 766 (Sept. 10, 2003), 2003 WL 22379944 (overturning “minority view” expressed in opinion in N.Y. State 398 (1975) that had distinguished work product as not being part of what former client could access).
62. American Law Institute, Rest. (3d) Law Governing Lawyers § 46 (2) (2007) (emphasis supplied).
63. American Law Institute, Rest. (3d) Law Governing Lawyers § 46 (3) (2007).
64. Alaska Bar Assn. Ethics Op. 2003-3 (May 6, 2003), 2003 WL 21292063, *1.
65. Alaska Bar Assn. Ethics Op. 2003-3 (May 6, 2003), 2003 WL 21292063, *2 (“As a general proposition, unless there is a strong reason for not producing or providing documents, a former client is to be accorded access to any documents possessed by the lawyer relating to the representation.”); State Bd. Of Cal. Standing Comm. On Professional Responsibility and Conduct, Formal Opn. No. 1992-127; Connecticut Bar Assn. Comm. On Professional Ethics, Opn. No. 94-1; State Bar of Ga., Formal Advisory Opn. No. 87-5; N.Y. State Bar Assn. Comm. Prof. Ethics Op. 766 (Sept. 10, 2003), 2003 WL 22379944 (overturning “minority view” expressed in opinion in N.Y. State 398 (1975) that had distinguished work product as not being part of what former client could access); Ohio Sup. Ct. Bd. Of Comm’rs on Grievances and Discipline, Opn. No. 92-8; Oregon State Bar Assn., Formal Opn. No. 1991-125.
66. Alabama State Bar, formal Ethics Opn. RO-86-02; Illinois State Bar Assn., Opn. No. 94-13 (Jan. 1995), 1995 WL 874715 (“lawyer’s notes and factual or legal research material … are the property of the lawyer”); North Carolina State Bar Ethics Comm., RPC 178 [1994].
67. Alaska Bar Assn. Ethics Op. 2003-3 (May 6, 2003), 2003 WL 21292063, *1-2.
68. Jurisdictions that have adopted verbatim the language of Rule 1.16(d) relating to surrendering papers and property to which a client is entitled include: Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Utah, Vermont, Washington, and West Virginia.
69. Rule 1.16(d), Model Rules (emphasis supplied).
70. ABA Model Code of Professional Responsibility, DR 2-110(A)(2) & (3) provide:
(2) In any event, a lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.
(3) A lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned.
71. Cal. Rules of Prof’l Conduct (YEAR) Rule 3-700(A)(2) and (D)(1) provide in relevant parts:
A) In General.
(2) A member shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, complying with rule 3-700(D), and complying with applicable laws and rules.. . .
(D) Papers, Property, and Fees.
A member whose employment has terminated shall: (1) Subject to any protective order or non-disclosure agreement, promptly release to the client, at the request of the client, all the client papers and property. “Client papers and property” includes correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert’s reports, and other items reasonably necessary to the client’s representation, whether the client has paid for them or not. …
72. ME Rev. Stat. (Maine Code of Prof’l Responsibility) Rule 3.5 provides:
(2) A lawyer shall not withdraw from employment until the lawyer has taken reasonable steps to avoid foreseeable prejudice to the rights of the lawyer’s client, including giving due notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.
73. McKinney’s Consol. Laws of N.Y., Code of Prof’l Resp., Ethical Consideration 2-32 provides in relevant part:
Even when withdrawal is justifiable, a lawyer should protect the welfare of the client by giving due notice of the withdrawal, suggesting employment of other counsel, delivering to the client all papers and property to which the client is entitled, cooperating with counsel subsequently employed, and otherwise endeavoring to minimize the possibility of harm. …
74. Commentary, ¶ 9 (“Assisting the Client Upon Withdrawal”) to Rule 9, Model Rules (2002).
75. Ill. State Bar Assn. Advis. Op. 95-02 (July 14, 1995), 1995 WL 874714.
76. Utah Rules of Prof’l. Conduct, Rule 1.16 (Comment) ¶ 9 (“It is impossible to set forth one all-encompassing definition of what constitutes the client file.”).
77. Six jurisdictions’ ethics rules specify materials that must be returned to the client. These jurisdictions are Massachusetts, Minnesota, Montana, Ohio, Tennessee, and Virginia.
78. Three jurisdictions specify in the commentary to their ethics rules what should be included in the “file.” These jurisdictions are Arizona, North Carolina, and Utah.
79. People v. Turner, 2006 WL 3353971, Colo.O.P.D.J., Nov 09, 2006 (NO. 05PDJ080, 05PDJ083, 06PDJ089) (failure to return former client’s file); People v. McMenaman, Not Reported in P.3d, 2006 WL 2413667 Colo.O.P.D.J. 2006 (same); People v. Mills, Not Reported in P.3d, 2005 WL 1199093, Colo.O.P.D.J. 2005; In re Arbuckle, 308 Or. 135, 775 P.2d 832 (1989) (failure to return client’s property, including military citations and newspaper clippings); Johnson v. State, 762 N.E.2d 222, 223 (Ind.App. 2002) (trial court required to grant defendant’s petition for mandamus to compel former counsel to turn over file for use in defendant’s postconviction action). See also Or. Eth. Op. 1991-125, 1991 WL 279216 (Or.St.Bar.Assn.), *1 Client Property: Photocopy Charges for Client Files, Production or Withholding of Client Files, Formal Opinion Number 1991-125 Approved: July 1991 (“As a general proposition, and absent viable attorney liens, attorneys are obligated to turn over their entire client files to their former clients.”).
80. Cortinez v. Supreme Court Committee on Professional Conduct, 966 S.W.2d 251, 256, 332 Ark. 456 (1998) (“[T]he clear language of the Rule does not require a demand from the client to trigger this obligation. It places an affirmative duty on the attorney, not the client, to protect the client’s interests upon termination of representation.”).
81. Rule 1.16(d), Model Rules (Declining or Terminating Representation) (2002).
82. Comment to Rule 1.16, ¶ 9 ABA Mod. R. Prof’l. Conduct (2002) .
83. MA Sup. Jud. Ct. Rule 3:07, Mass. Rules of Prof’l Conduct, Rule 1.16(e).
84. Minn. Rules of Professional Conduct, 52 Minn. Stat. Ann., Rule 1.16(e).
85. Minn. Rules of Professional Conduct, 52 Minn. Stat. Ann., Rule 1.16(g).
86. Rules of Tenn. Sup. Ct., Rule 8, Rules of Professional Conduct, Rule 1.16(d)(1)-(3).
87. Baldwin’s Oh. Rev. Stat., Oh. Rules of Professional Conduct, Rule 1.16(d).
88. Bd. of Comm’rs on Grievances and Discipline, Sup. Ct. of Ohio, Oh. Adv. Op. 92-8, 1992 WL 739411 *4 (April 10, 1992).
89. West’s Va. Code, Rules of Va. Sup. Ct., Va. Rules of Professional Conduct, Rule 1.16(e).
90. Rule 1.16(e), West’s Va. Code, Rules of Va. Sup. Ct., Va. Rules Prof’l. Conduct.
91. Rule 1.16(d), Mont. Rules of Prof’l. Conduct.
92. ¶¶ 9-11, Comment to Rule 1.16, Rules of the Ariz. Sup. Ct., Rule 42, Ariz. Rules of Prof’l. Conduct (Thomson West 2007).
93. ¶ 10, Comment to Rule 1.16, N.C. State Bar Rules.
94. ¶ 9, Comment to Rule 1.16, Utah Rules of Prof’l. Conduct (“[T]he client file generally would include the following: all papers and property the client provides to the lawyer; litigation materials such as pleadings, motions, discovery, and legal memoranda; all correspondence; depositions; expert opinions; business records; exhibits or potential evidence; and witness statements. The client file generally would not include the following: the lawyer’s work product such as recorded mental impressions; research notes; legal theories; internal memoranda; and unfiled pleadings.”).
95. ¶ 11, Comment to Rule 1.1.6(d), Rev. Rules of Prof. Conduct of N.C. Bar, provides: “A lawyer who represented an indigent on an appeal which has been concluded and who obtained a trial transcript furnished by the state for use in preparing the appeal, must turn over the transcript to the former client upon request, the transcript being property to which the former client is entitled.”
96. Tenn. Eth. Op. 83-F-42, 1983 WL 189634 (Tenn.Bd.Prof.Resp.), Board of Professional Responsibility of the Supreme Court of Tennessee; *1 Formal Ethics Opinion Number 83-F-42 (April 14, 1983) (transcript obtained by attorney is client’s property; attorney under no duty to obtain transcript for former client that had not already been prepared).
97. Dubose v. Shelnutt, 566 So.2d 921 (Fla.App. 5 Dist. 1990) (lawyers obligated to assist former client, criminal defendant, seeking depositions from his case even though he did not specify which depositions he sought); McCaskill v. Dees, 698 So.2d 628 (Fla.App. 5 Dist. 1997) (same); Bermed v. Tacher, 565 So.2d 833 (Fla.App. 3 Dist. 1990) (same).
98. Bd. of Comm’rs on Grievances and Discipline, Sup. Ct. of Ohio, Oh. Adv. Op. 92-8, 1992 WL 739411 (April 10, 1992) (citing Ohio cases).
99. See, e.g., West’s Wy. Stat. 1977 § 29-1-102 (Lien of Attorneys on Papers and Monies of Clients.).
100. ¶ 9, Comment (Assisting the Client Upon Withdrawal) to Rule 1.16, Model Rules (“The lawyer may retain papers as security for a fee only to the extent permitted by law.”). See also ABA Comm. on Prof’l Ethics and Grievances, Informal Op. 1376 (1976); Formal Op. 209 (1940) and Formal Opinion 63 (1932).
101. Rule 1.8(i), Model Rules (“A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may: (1) acquire a lien authorized by law to secure the lawyer’s fee or expenses.”).
102. Columbus Bar Ass’n, Op. 4 (undated) (lawyer must evaluate situation to ensure asserting retaining lien does not violate ethical obligations); Comment to Rule 1.16(d), Vt. Rules of Prof’l. Conduct (“The availability of such a retaining lien is limited where the fee is disputed or, by the overall effect of Rule 1.16, where harm to the client could result from the lawyer’s retention of the file.”).
103. Pa. Bar. Ass’n. Op. 87-61 (1987) (lawyer owed unpaid fees should return client’s file and sue for the fee); West Virginia State Bar, Op. 89-2 (undated) (lawyer may not retain client’s papers as security for fee and must return all except fee statements and firm records); New Hampshire Bar Ass’n, Op. (8) (1982).
104. Rule 1.16(g), Minn. Rules of Prof’l. Conduct, provides: “A lawyer shall not condition the return of client papers and property on payment of the lawyer’s fee or the cost of copying the files or papers.”
105. ¶ 9, Comment to Rule 4-1.16(d), Mo. Rules of Prof’l Conduct, provides: “The lawyer may retain items for which the attorney has paid out of pocket and has not been reimbursed but may not retain papers as security for a fee.”
106. Rule 1.16, N.C. State Bar Rules (“The lawyer may never retain papers to secure a fee.”).
107. U.S. v. Ringwalt, 210 F. Supp. 2d 653, 655 (E.D. Pa. 2002) (“Although courts have not expressly carved out any formal distinction between retaining liens asserted by lawyers against clients for failure to pay a fee in a civil as opposed to a criminal case, courts have recognized that the nature of the interests implicated in a civil case differ in some important respects from those in a criminal prosecution.”).
108. People v. Hotle, 35 P.3d 185 (Colo. Ofc. of Presiding Disciplinary Judge of the Supreme Court of Colo. 1999) (Nov. 16, 1999).
109. Dowda and Fields, P.A. v. Cobb, 452 So.2d 1140, 1142 (Fla. App. 5th Dist. 1984) (“Attorneys normally maintain an office file relating to matters involving professional services performed for a particular client as to a particular matter. This is commonly referred to as that client’s file but it only relates to that client and the file and its contents is the personal property of the attorney. The attorney’s file may or may not contain documents or other property of the client. The attorney’s file may also contain information about a client’s affairs concerning which the attorney may have an ethical duty to communicate to successor counsel.”).
110. Guidelines § 10.13 (The Duty to Facilitate the Work of Successor Counsel), 31 Hofstra L. Rev. 913, 1074 (2003).


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