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

label any error as the result of a strategic decision rather than occurring because of an
inexcusable lack of attentiveness or competence. If counsel errs following a reasonably
complete investigation of the law and facts, deference usually wins the day. The Court has
been more willing to take a careful look when the error relates to inexcusable legal or factual
investigation. 13
If defendants meet the first prong of Strickland, they then face equal difficulty
establishing but-for causation, or the prejudice prong, which requires a defendant to show
that but for counsel’s professional mistake the result would have been different. 14 Courts
typically find that counsel’s errors are harmless and refuse to grant relief. Most cases refuse
to presume prejudice, because per se rules require that the circumstances must be “so likely
to prejudice the accused that the cost of litigating their effect in a particular case is
unjustified.” 15
Control Maples indicates that complete neglect of a lawyer’s responsibility amounts to
abandonment of the agency relationship itself. 16 When such a relationship exists, Model
Rule 1.2(a) specifically reserves three fundamental decisions to clients in criminal cases:
“the plea to be entered, whether to waive a jury trial, and whether the client will testify.”
The Restatement and Sixth Amendment cases add the decision whether to appeal. 17 Maples
illustrates that lawyers who do not consult with clients about these personal client decisions
or do not abide by the client’s choice commit serious error.
Communication Several recent cases have relied in part on Model Rule 1.4, which requires
lawyers to initiate communication about decisions that require client informed consent
(such as plea bargains) 18 and also requires that lawyers offer correct legal advice (about the
legal requirements at trial if the defendant rejected a plea bargain). 19 State courts also have
found counsel ineffective for giving defective advice about fundamentally personal client
decisions. 20 In most cases, however, Strickland requires a case-by-case determination of
incompetence, dictated by the particular facts and circumstances of the case. 21
Confidentiality Criminal defense lawyers have special confidentiality obligations. With
respect to candor to the tribunal, Model Rule 3.3 prohibits all lawyers from knowingly
offering false evidence. Lawyers also may refuse to offer evidence they reasonably believe to
be false. The one exception is criminal defense. A lawyer who reasonably believes, but does
not know, that his or her client/defendant will testify falsely, must bow to the client’s
choice. 22
Conflict of Interest Resolution A lawyer’s conflict of interest has been the basis for asserting
ineffective assistance in a number of recurring situations, including the joint representation
of co-defendants, previous representation of the victim or other significant prosecution
witness, fee arrangements (including payment by one co-defendant for others or potential
royalties to counsel that may accrue after the trial), investigation or possible prosecution of
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