Criminal Law

Duty of an Attorney at Law – Responsibilities Owed to the Client


Ineffective assistance of counsel standards and legal malpractice standards with regard to advice all boil down to communication.[1]  It is safe to say that at the heart of criminal law lays the attorney-client privilege.[2] This privilege is described as, “the oldest among common-law evidentiary privileges,[3] [that] fosters the open dialogue between lawyer and client that is deemed essential to effective representation.”[4] In American jurisprudence, the privilege is premised on the belief that our legal system is more civilized because we recognize and enforce this privilege.[5] In turn, the legal system is advanced because the attorney’s advice is based on full disclosure.[6] Stated otherwise, our legal system encourages full disclosure and does so by eliminating the fear that confidential information will be shared with other parties.[7] However, if the lawyer fails to advise or misadvises the client on a critical issue, the client’s future could be drastically affected without the client’s knowledge.[8] In that case, an attorney could be found to be ineffective,[9] or legally negligent[10] under the tort of legal malpractice.[11] Because of the significance of the attorney-client relationship, attorneys owe tremendous duties to both the client[12] and the court.[13] But this standard[14] does not require an attorney to anticipate changes in the law.[15] In applying adequate legal representation, an attorney must apply knowledge, skills, and ethics to a client’s specific circumstance.[16] In addition to zealously[17] advocating for a client, an attorney must communicate[18] and advise[19] his client. Ordinarily, an attorney has no duty to initiate investigation[20] into a client’s affairs that the client has indicated are unnecessary, but an attorney can initiate advice if it appears to be in the client’s best interest.[21] But, without question, an attorney’s responsibilities are to conduct prompt investigation of the circumstances surrounding the case, and to explore all avenues that could possibly lead to relevant facts.[22]

[1] Sara Elizabeth Dill & Robert J. McWhirter, Practice Pointers for the Criminal Defense Attorney in the Aftermath of Padilla v. Kentucky, ABA Criminal Justice Section 1 (Spring 2010) (“the Sixth Amendment requires defense counsel to provide affirmative, competent advise to a non-citizen defendant regarding the immigration consequences of a guilty plea and, absent this advice, a noncitizen may claim ineffective assistance of counsel.”).

[2] See Upjohn Co. v. United States, 449 U.S. 383 (broadening attorney-client privilege by holding that communication of any employee of a corporation to the attorney in regards to the corporation could be protected under the attorney-client privilege.); see also In Matter of Jacqueline F., 47 N.Y.2d 215, 417 N.Y.S.2d 884 (1979) (holding that strong public policy interests could pierce attorney-client privilege, where the attorney was ordered to disclose his client’s address when the custody of that client was the issue before the court).

[3] Upjohn, 449 U.S. at 389 (1981).

[4] See Spectrum Systems v. Chemical Bank, 78 N.Y.2d 371, 377, 575 N.Y.S.2d 809, 813 (1991).

[5] Vincent S. Walkowiak, The Attorney-Client Privilege in Civil Litigation: Protecting and Defending Confidentiality 4 (4th ed. 2008).

[6] Id.

[7] Id.

[8] See M.C.L.A § 168.758b (2005) (stating while one cannot vote while in custody, one can under M.C.L.A § 168.492a vote if in detention awaiting trial); compare to M.C.L.A § 600.1307a(1)(e) (1996).

[9] See Bobby v. VanHook, 130 S. Ct. 13 (2009) (holding that failure of defense counsel to comply with ABA standards in a death penalty case adopted years after his representation was not ineffective assistance of counsel); See also Wong v. Belmontes, 130 S. Ct. 383 (2009) (finding counsel was not ineffective in limiting his presentation of mitigating evidence in a death penalty case, where defense counsel faced the real possibility that presenting certain evidence would open the door to the state presenting evidence that the defendant had committed a prior murder); Compare to Porter v. McCollum, 130 S. Ct. 447 (2009) (concluding that the Florida Supreme Court was objectively unreasonable in holding that there was no reasonable probability of a different sentence if the judge and jury heard significant mitigating evidence such as being abused as a child, effects of fighting in the Korean War, and evidence of Brain abnormality).

[10] See Clifford W. Taylor, George A. Googasian & Allan S. Falk, West Group Michigan Practice Guide Torts § 2-1 (Vol. 1 2002) (“Negligence is a broad doctrine that reaches into every nook and cranny of human activity to create a basis for tort liability.”).

[11] See Mieras v. BeBona, 452 Mich. 278, 308, 550 N.W.2d 202 (1996) (finding that a duty is unquestionably owed to the client, but may also be owed to third persons, such a beneficiaries of a will or trust the lawyer is retained to draft); see also McCluskey v. Womack, 188 Mich. App. 465, 473, 470 N.W.2d443 (1991) (stating that a claim of legal malpractice requires a showing of actual injury caused by malpractice, not merely the potential for injury).

[12] Eggleston v. Boardman, 37 Mich. 14, 16 (1877); Babbitt v. Bumpus, 73 Mich. 331, 41 N.W. 417 (1889); see generally Model Rules of Prof’l Conduct R. 1.0-.3 (2010).

[13] See generally Model Rules of Prof’l Conduct.

[14] Joos v. AutoOwners Ins. Co., 94 Mich. App. 419, 422, 288 N.W.2d 443 (1979); see e.g., Simko v. Blake, 448 Mich. 648 , 657, 532 N.W.2d 842 (1995) (concluding that only average ability is required, including a duty to behave as would an attorney of ordinary learning, judgment, or skill under the same or similar circumstances).

[15] Boyle v. Odette, 168 Mich. App. 737, 745 (1988).

[16] See generally Sullivan, William M., Anne Colby, Judith Welch Wegner, Lloyd Bond & Lee S. Shulman, Educating Lawyers: Preparation for the Profession of Law (Carnegie Foundation for the Advancement of Teaching 2007); compare to Thomas M. Cooley Law School, Mission Statement.

[17] See e.g., Model Rules of Prof’l Conduct R. 1.3 cmt. [1] (2010) (“A lawyer must also act with commitment and dedication to the interests of the client with zeal in advocacy upon the client’s behalf.”); But see Model Rules of Prof’l Conduct R. 3.1 cmt. [1] (2010) (“The advocate has a duty to use the legal procedure for the fullest benefit of the client’s cause, but also a duty not to abuse legal procedure.”); See e.g., In re Zawada, 208 Ariz. 232, 92 P.3d 862 (2004) (finding a prosecutor in violation of ethical rules, as his over-zealous prosecution of first-degree murder case: he suggested that a psychiatric expert fabricated his diagnosis, and in closing suggested that the defense attorney paid the expert to lie).

[18] Model Rules of Prof’l Conduct R. 1.4 (2010).

[19] Model Rules of Prof’l Conduct R. 2.1 (2010).

[20] ABA Standards For Criminal Justice std. 4-4.1 (1993).

[21] Model Rules of Prof’l Conduct R. 2.1 cmt. (2010).

[22] ABA Standards For Criminal Justice std. 4-4.1 (1993).

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