Bar overseer: It's not over till it's over

Issue May 2003 By Ellen M. Meagher<br /> Assistant Bar Counsel

Post-conviction obligations of criminal defense counsel

Your client was convicted a month ago. He is unhappy, sitting in prison and has lots of time on his hands. He keeps writing to you. He leaves numerous telephone messages asking you to contact him. You are not handling the appeal so you have closed the file and put the case behind you. The evidence against him was strong. You did your best. You would like to ignore him … Don't!

Mass. R. Prof. C. 1.3 and 1.4 require a lawyer to exercise reasonable diligence and to keep a client reasonably informed about the case so that he or she can make informed decisions. Even if handling the appeal is not within the scope of your agreement with the client, your obligations to protect him or her do not necessarily stop after the client has been convicted.

These obligations vary depending upon whether the client's case was resolved by a trial or a guilty plea.

A criminal defense attorney's post-trial duties are clear. The attorney must advise the client of all post-conviction remedies that may be available, as well as the deadlines for pursuing any of those remedies. Unless the client specifically directs otherwise, the trial attorney should file a notice of appeal of the conviction. Pursuant to Massachusetts Rules of Appellate Procedure 4(b), this notice must be filed within 30 days from the date of the judgment. Appointed counsel should also order the tape or transcript of all prior court proceedings, and should consider requesting a stay of execution of any sentence, particularly one of incarceration.

If the attorney is not representing the client on the appeal, a motion to withdraw and request for appointment of substitute counsel should accompany the notice of appeal. After withdrawing, the attorney has an obligation to cooperate with successor counsel and to provide successor counsel or the client with the client's file. If a client clearly does not wish to pursue an appeal, the attorney should confirm this in writing to the client.

Other post-trial remedies include sentence appeals after Superior Court convictions and motions to revise and revoke. The trial attorney should inform the client of these rights and of the filing deadlines and should explain the advantages and disadvantages of each proceeding. If a client requests that a sentence appeal or motion to revise and revoke be filed, an attorney's duty differs depending upon whether the attorney was appointed or privately retained. Appointed counsel should file the sentence appeal and should also file the motion to revise and revoke and continue to represent the client if the client requests. See the Committee for Public Counsel Services Performance Standards Chapter 4 section 8, regarding post-conviction proceedings. ( If the client does not wish to pursue these remedies, defense counsel should get confirmation in writing.

Privately retained counsel is not obligated to file a sentence appeal or a motion to revise and revoke if the client cannot or will not pay the attorney to do it. However, if the client wishes to pursue post-conviction remedies but can no longer afford the services of privately retained counsel, the attorney should instruct the client regarding how to obtain appointed counsel.

On rare occasions, the court will suggest during a sentencing hearing that a motion to revise and revoke be filed, indicating that the judge will reconsider a sentence if the client fulfills some condition or requirement. In this situation, the attorney, whether appointed or privately retained, must file the motion. If the attorney was privately retained and the client is unwilling or unable to pay the attorney to pursue the motion, the attorney may then request permission to withdraw. The motion to withdraw should be accompanied by a motion for the appointment of counsel if the client is now indigent. Appointed counsel and private counsel who have not been allowed to withdraw have an obligation to protect the client by monitoring the situation after the motion is filed, and should represent the client at the hearing on the motion after the judge's conditions or requirements are fulfilled. Appointed counsel may not withdraw without requesting the appointment of substitute counsel.

Trial counsel also should advise the convicted client about post-conviction remedies that are available pursuant to Rule 30 of Massachusetts Rules of Criminal Procedure. Because all possible grounds must be raised in the original or amended Rule 30 motion or else they are waived, the attorney should not file a pro forma Rule 30 motion and should caution the client regarding the filing of a pro se motion. If the client is indigent, the client should be advised to request the appointment of counsel to evaluate the merits of a Rule 30 motion. Any client, indigent or not, should also be advised to discuss a potential motion with appellate counsel.

A criminal defense attorney may also have post-conviction obligations to a client after the client has pleaded guilty. If the client is dissatisfied with the sentence imposed by the court, the attorney should discuss a sentence appeal if appropriate, or a motion to revise and revoke with the client and follow the guidelines described in paragraphs five and six above.

However, even in situations where the client is satisfied with the sentence, problems can arise. Occasionally, there is an error in the client's sentencing mittimus, and the sentence is not accurately transmitted to the department of corrections. Often, the client did not receive all of the jail credits that were earned while the client was awaiting trial. Sometimes the sentence that the court intended to impose was not the sentence that the client received, and the wording of the sentence must be changed to accurately reflect the court's sentencing intent. The attorney who represents a defendant at a guilty plea has a duty to insure that the client clearly understands the effect of the guilty plea and the sentence that will be imposed. If the sentence that was imposed does not accurately reflect the sentence as the attorney explained it to the client, the attorney has an obligation to fix it.

Another related issue concerns a criminal defense attorney's obligation when a client defaults. Again, the obligation depends upon whether the attorney was appointed or privately retained. If an attorney was retained to represent a client and paid a flat fee for the entire case, the attorney's obligation to the client does not end with the default. The fee should cover continuing to represent the client when and if the client reappears. If the client contacts the attorney and requests assistance in removing the default, the attorney is obligated to assist the client. If the attorney determines that he or she is no longer able to represent the client, then the attorney may seek permission to withdraw, but he or she must refund any unearned portion of the legal fee.

When an attorney is appointed to represent an indigent client in a criminal case, the Committee for Public Counsel Services considers the case to be concluded for billing purposes if a client defaults. However, the Committee for Public Counsel Services will routinely reopen assignments when necessary. See the Committee for Public Counsel Service Performance Manual, Chapter 5, regarding billing practices. If the defaulted client should subsequently contact appointed counsel to request assistance in removing the default, the preferable course is for the attorney to contact the Committee for Public Counsel Services to request that matter be reopened and then to assist the client in removing the default. If, however, the attorney had very little contact with the client prior to the default, it is also permissible for the attorney to instruct the client to report to court and request that new counsel be appointed.

A criminal defense attorney's job isn't done until all of the client's rights have been protected. Post-conviction telephone messages and letters might be telling you that you have missed something. Ignoring messages and letters from these clients can lead to a violation of Mass. R. Prof. C. 1.3 and 1.4. Answering the inquiries now might save you from having to answer Bar Counsel later.