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

Second, the statute of limitations must be confronted. 43
If these defenses can be surmounted, proof of breach of the professional duty of care
would not be problematic, because former clients could rely on expert testimony, ABA
Criminal Defense Standards as well as Model Rules to establish such a duty. 44 But proving
causation in these cases would be impossible in most jurisdictions, because the vast majority
require that the defendant must first have his conviction reversed. 45 Some jurisdictions
require even more: an affirmative proof of innocence. 46 A few hold that in some cases, the
defendant need only show that he would have accepted an alternative plea (or appeal) if it
had been presented to him. 47 In the few cases where causation has been shown, courts do
not hesitate to approve recovery for emotional distress due to incarceration caused by the
lawyer’s negligence. 48
Professional Discipline Of course, a defendant who complains about incompetent defense
counsel also may file a disciplinary complaint against his former lawyer. In most of the cases
where discipline has occurred, the lawyer exhibited a pattern or practice of incompetence.
For example, lawyers have been disciplined for abandoning criminal clients, failing to
appear after being retained to do so, 49 and repeated incompetence in handling criminal
matters. 50
The Future
Most criminal defense lawyers function in a system that is underfunded and overworked.
They often labor under difficult conditions where the stakes are exceedingly high. The law
of procedural default and ineffective assistance of counsel addresses some of these errors,
but produces few incentives to counter many difficult circumstances. State courts have
created similar and often more extensive barriers to recovery in legal malpractice cases.
Professional discipline, although possible, also rarely occurs.
The number of cases where procedural default or ineffective assistance of counsel is
alleged points to continuing problems in criminal defense representation. And the number
of cases that have granted relief despite considerable proof burdens suggests a continuing
legacy of deficient conduct that raises serious questions about whether our constitutional
guarantee of adequate counsel is a truly meaningful one.
Problem
5-1. Martyn and Fox represent Client, who was convicted of capital murder. Client’s
direct appeals were unsuccessful, after which Client received a courtappointed
Lawyer to represent him in his state and federal post-conviction proceedings.
Lawyer filed and argued a state habeas petition, but failed to file the federal claim within
the required statute of limitations when the state claim was denied. Client tells Martyn &
Fox that he repeatedly wrote Lawyer letters requesting information and directing Lawyer to
file a timely federal petition. What next?
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