Bobby v. Van Hook,130 U.S. 13, 175 L.Ed.2d 255 (Nov. 9, 2009) (per curiam) (limiting application of the ABA Guidelines in capital cases as the basis for determining effective assistance of trial counsel during sentencing phase, and finding the Sixth Circuit erred in relying exclusively on the 2003 ABA Guidelines as the standard by which to evaluate counsel's performance in a case tried in the 1980s, eighteen years before the 2003 edition of the Guidelines was published); compare Wiggins v. Smith, 539 U.S. 510 (2003).



The Sixth Circuit also erred by treating "the ABAs 2003 Guidelines not merely as evidence of what reasonably diligent attorneys would do, but as inexorable commands with which all capital defense counsel must fully comply." The opinion cites Strickland, which in 1984 discussed the 1980 ABA Guidelines, and notes that decision "stressed, however, that American Bar Association standards and the like are only guidelines to what reasonableness means, not its definition." The decision distinguishes Wiggins v. Smith, 539 U.S. 510 (2003), the first case that relied upon the 2003 ABA Guidelines to find trial counsel was ineffective in failing to present adequate mitigating evidence at the penalty phase; and Rompilla v. Beard, 545 U.S. 374 (2005), by noting that in Wiggins trial counsel failed to act on "potentially powerful mitigating evidence [that] stared them in the face" and in Rompilla the mitigating evidence was "apparent from documents any reasonable attorney would have obtained." There is also a very opaque footnote about the "less categorical use of the [ABA] Guidelines to evaluate post-2003 representation."



In current cases, these "guides" must still be referred to as the prevailing norm of professional conduct, but for cases prior to 2003, they cannot be assumed to be the bar. The concurrence by Justice Alito is even worse. He emphasizes that "the opinion in no way suggests that the American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. ed. 2003) (2003 Guidelines or ABA Guidelines) have special relevance in determining whether an attorney's performance meets the standard required by the Sixth Amendment. The ABA is a venerable organization with a history of service to the bar, but it is, after all, a private group with limited membership. . . . I see no reason why the ABA Guidelines should be given a privileged position in making that determination." Thanks to John Lanahan.