[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

The Clients The Sixth Amendment constitutional right to counsel for those unable to pay
was judically recognized first in some 5 and then in all felony cases, on the ground that
defense lawyers “are necessities, not luxuries,” both to protect against the risk of wrongful
conviction and to provide due process of law. 6 Rights to counsel in juvenile and certain
misdemeanor cases followed. 7 A person accused of a crime has a right to retained or
appointed counsel at all “critical stages” (including plea negotiations) of such proceedings.
In addition, a person convicted of a crime has a Fourteenth Amendment right to counsel
for capital sentencing hearings and for the first appeal as of right, but not for other postconviction
proceedings, such as the state habeas proceeding in Maples. The right to counsel
includes a right to counsel of choice, but only to defendants who can afford to hire or
otherwise find a lawyer willing to represent the defendant without charge. 8
Competence The vast majority of issues about competent criminal defense representation
have been litigated in criminal appeals where ineffective assistance of counsel is alleged as
basis of relief from a conviction or sentence.
The Supreme Court first provided a framework to evaluate the adequacy of counsel in
1984. In Strickland v. Washington 9 and United States v. Cronic, 10 the Court found that the
Sixth Amendment right to effective assistance of counsel included the right to a lawyer who
would play “a role that is critical to the ability of the adversarial system to produce just
results.” 11 Strickland created a two-prong test to assess whether a defendant had been
deprived of the effective assistance of counsel. The first prong, performance, requires the
defendant to show “that counsel’s representation fell below an objective standard of
reasonableness” and parallels the duty-breach analysis in legal malpractice suits. The second
prong, prejudice, requires the defendant to show “that but for counsel’s errors, the result in
the proceeding would have been different,” and functions like a harmless error analysis in
criminal appeals.
Criminal defense lawyers who face huge caseloads have affirmative obligations to refuse
new appointments or seek leave to withdraw from existing cases to prevent abandonment
and to provide competent representation. 12 Maples represents a rare case where a client
received some form of redress for the lawyers’ incompetence. The Court’s excusal of the
procedural default meant that Mr. Maples will next be permitted to raise his ineffective
assistance of counsel in a collateral federal habeas corpus proceeding. In that proceeding,
Mr. Maples will have to present evidence establishing both prongs of the Strickland test.
The first prong, performance, requires defendants to identify the precise error or errors
of defense counsel and then to present some substantial evidence that those errors should
not have occurred. Defendants may rely on expert testimony or what the Supreme Court
has referred to as evidence of a “codified standard of professional practice” (such as the
Rules of Professional Conduct or ABA Standards for the Defense Function), which can
serve as “important guides.”
Strickland instructs courts to “indulge in a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance,” which invites courts to
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