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Do prosecutors have any ethical duty to report a finding of IAC? Login/Join 
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What duty does the State have after a case is reversed on appeal due to IAC?

An indecency case was recently reversed in an unpublished opinion on the grounds of ineffective assistance of counsel. No PDR was filed, and the mandate has now issued. Is this office under any ethical duty to report this outcome? If so, to whom? The defense attorney in question is board certified in criminal law; is there any duty to report the finding to the Board of Legal Specialization? Rules of Professional Conduct 8.03 and 8.04 are not terribly helpful.

We appellate prosecutors were all under the impression that the Court of Appeals had a duty to report a finding of IAC, but the Clerk of the court has stated, after conferring with a staff attorney, that because we prosecutors have knowledge of the opinion, it is OUR duty to report the IAC finding. It is clear that the Court is not going to report anything to anyone.

While the defense attorney is certainly no favorite in this office, and his actions have given a pedophile a do-over, nobody here really wants to be the one to dime him out unless we are ethically obligated to do so.

Has anyone out there dealt with this???
 
Posts: 1 | Registered: January 11, 2005Reply With QuoteReport This Post
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It is perplexing that the appellate courts will not follow up with the State Bar. After all, they are the courts finding counsel ineffective. If there were real consequences to defense counsel when found ineffective perhaps we would see less ineffectiveness and less IAC. Our office is establishing an internal ethics committee, which will handle all such issues, but we have yet to formalize any criteria. I do recall that attorneys have a duty to rat under the disciplinary rules -- if it is true for attorneys, it must be just as true for appellate judges or briefing clerks. Does that mean we as prosecutors have two complaints, one against the defense attorney and one against the appellate court. Ugh!

Rule 8.03 of the Texas Disciplinary Rules of Professional Conduct 8.03 appears to be the critical provision. Don't you suppose that if successful IAC claims could be brought in the civil law arena grievances would be more likely lodged?

I have yet to hear of anyone pursuing a grievance against defense counsel found ineffective, let alone, successfully doing so. There must be some very deserving cases out there though. And we should be mindful of the constant attacks from the media on the quality of representation in criminal cases. (By the last comment I do not mean to denigrate the many diligent, competent, ethical, and professional criminal defense attorneys who practice in our state.)

[This message was edited by John Stride on 01-14-05 at .]
 
Posts: 532 | Location: McKinney, Tx | Registered: June 22, 2001Reply With QuoteReport This Post
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Presumably the court found that the attorney's conduct did not raise a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects. Thus, I would have to say you also have no absolute ethical duty to report the matter to the Bar. If his client is not inclined to complain, maybe you should just save the information for use in the future if a pattern develops.
 
Posts: 2391 | Registered: February 07, 2001Reply With QuoteReport This Post
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