Criminal Defense of Immigrants


§ 3.53 1. Duty to Cooperate With Successor Counsel

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Criminal defense counsel may be contacted by post-conviction counsel seeking continuing assistance in representing a mutual client whose criminal case resulted in adverse immigration consequences.  Hopefully both counsel can agree on a way to assist the client to avoid the disastrous, life-shattering consequences of permanent deportation and banishment.  The citations given here are to California law.  The law of each state should be consulted for analogous provisions.


                The attorney has continuing ethical obligations to respect the client’s confidences, and to aid the client in seeking post-conviction relief to the maximum extent consistent with the truth.[156]


                The basic duty of cooperation with successor counsel includes:


                a.             preserving all files relating to the client.[157]


b.             turning over to successor counsel copies of all files relating to the client.[158]  This includes “work product” since work product belongs to the client.[159]


                c.             conveying to successor counsel all information not reduced to                                                 writing.[160] 


d.             maintaining the duty of loyalty to the client, in order to “avoid prejudice to the rights of the client.”[161]  Even after successor counsel begins representing the client, the attorney-client privilege prevents disclosure of confidential communications between client and original counsel.  Any possible waiver by a client’s allegations of attorney error is limited to the specific matters put at issue.[162]


                The duty to avoid prejudice to the client may preclude counsel from disclosing otherwise privileged information to third parties without a prior judicial determination that the privilege has in fact been waived and that the information to be revealed by the attorney is within the scope of the waiver.  Thus, the most prudent course of conduct for counsel facing an allegation of attorney error would be to refrain from any breach of the attorney-client privilege unless and until ordered to answer the allegations by a court.  In summary, trial counsel is ethically required to aid successor counsel in every way, and not to harm his client, unless the privilege is judicially broken.


e.             It would be safest for counsel not to speak with or communicate with any law enforcement officer, prosecutor, judge, or representative of any of those offices concerning the client’s case, without the express permission of a client who has not waived the attorney-client or work product privileges unless a court has entered a ruling that these privileges have been waived.

[156] See, e.g.,  Formal Opinion No. 1992-127 of the State Bar of California’s Standing Committee on Professional Responsibility and Conduct.

[157] See, e.g., California Rules of Professional Conduct 3-700(A)(2); Rule 3-700(D)(1); Opinion 420 of the L.A. County Bar Association Ethics Committee, Materials, Item 14.  The only secure exceptions to this duty are that a client’s files may be returned to him or her or destroyed if counsel has the client’s written permission to do so.

[158] Rule 3-700(D)(1).

[159] Weiss v. Marcus, 51 Cal.App.3d 590 (1975); see also Spivey v. Zant, 683 F.2d 881 (5th Cir. 1982); Roberts v. Helm, 123 F.R.D. 614 (N.D. Cal. 1988).

[160] See People v. Rhoden, 6 Cal.3d 519 (1972).

[161] Rule 3-700(A)(2).

[162] See, e.g., In re Gray, 123 Cal.App. 3d 614 (1981).