Amicus Curiae Brief — Schriro v. Landrigan

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No. 05-1575

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Supreme Court of the United States

+

DORA B. £‘_HRIRO, et al,

Petitioners,

JEFFREY TIMOTHY LANDRIGAN,

Respondent.

+

ON PETITION FOR Writ OF CERTIORARI

TO THE UNITED STATES Court Of APPEALS

FOR THE NINTH CIRCUIT -

.

BRIEF AMICUS CURIAE

OF THE AMERICAN BAR ASSOCIATION

IN SUPPORT OF RESPONDENT

6

Of Counsel: Karen J. Mathis*

President

Lawrence J. Fox AMERICAN BAR ASSOCIATION

David J. Kessler 321 North Clark Street

Kathryn E. Bisordi Chicago, Illinois 60610

(215) 988-2700

* Counsel of Record

Counsel for Amicus Curiae,

American Bar Association

THE LEX GROUP®© ¢ 1750 K Stree! N.W. ¢ Suite 475 ¢ Washington, OC 20006

(282) 955-G001 ¢ (800) §25-3791 ¢ Fax: (202) 955-0022 ¢ www.thclexgroupdc.com by

TABLE OF CONTENTS

TABLE OF AUTHIORITIEBS .............c0rssssocccsssesesesseoesere

a.

INTEREST OF THE AMICUS ..........c:cecscecesncescsnseerees

SUMMARY OF THE ARGUMENT ..........ccescccesseens

Established Ethical Rules, Practice Guidelines,

Common Law Principles, and Constitutional

Jurisprudence Provide the Prevailing

Professional Norms Under Which the

Reasonableness of Counsel’s Performance

SNCS NO II saan ticnedicsicnceeepemsthplegchnsnee

A. Presently Prevailing Professional

Norms, As Well As_ Those

Prevailing Professional Norms at

the Time of _ Landrigan’s

Sentencing, Require Lawyers to

Conduct a Reasonable

Investigation and Inform the

Client Regarding Client Decisions...

1. Prevailing Professional

Norms Require a Lawyer to

asi iestcsiccssacitintdhiticipineceia

eeeeee

a 2

2. Prevailing Professional

Norms Require a Lawyer to

Inform and Advise _ the

Client Regarding Client

I a idachicscesstipnsbsininccinnciapttieden 10

B. The Fiduciary Obligations of

Lawyers Reflected in

Contemporary Professional Norms

Derive from a _ Deeply-Rooted

Common Law Tradition ......-...ccscsseeeees 12

c. Because These Ethical Questions

Cannot Be Answered on the

Present Record, Remand is

ti

TABLE OF AUTHORITIES

CASES

Baird v. Pace,

752 P.2d 507 (Ariz. 1987) ..ccccssssssseeees ove

Baker v. Humphrey,

TOL U.S. 494 (1879) .ccccccssesssssnsseessennnees

In re Cardenas,

791 P.2d 1032 (Ariz. 1990) .csccsocsesesonneee

Cox v. Sullivan,

Pin I

In re Curtis,

908 P.2d 472 (Ariz. 1995) ...cccccscosssseseeee

Fitch v. Scott,

3 How. (Miss.) 314 (1839)......cccsseseeseese

Gilbert v. Williams,

Witenes: WE AUDEN ss tsiscscscicemiecsee

Goodman v. Walker,

Ale, a 18067)

Marshall v. Hendricks,

307 F.3d 36 (3d Cir. 2002)..0.-cccccccseseun

Page(s)

ticaleelibads 5

People v. Mattson,

Pr bg ©. . |. Eeiiennsmpeesomer ane oe CREME

Rescue Army v. Municipal Court,

SOE Rae OP CRED isp tcihcndsic canseicstentanniciiebiesinintstotie 9

State v. Carriger,

645 P.2d 816 (Ariz. 1962)............-.....cccccvcssesscesessenees 8

State v. Fisher,

THO P28 CIS (ASI. TFBG) occa ncncisvsvescncsosesrsnccteses 6,7

State v. Lopez,

412 P.2d 882 (Ariz. App. 1966) ...........0:s:ccesesessseees 7

- State v. Schultz,

681 P.2d 374 (Ariz. 1984) 0.0... .cccsesecsssesssesrsnenenens 7,8

Stevens v. Dexter,

Re I sctininnsastrevtnesacestoveinnivicecovsssnbiegcieiokt 13

Strickland v. Washington,

TI asi csrrr epic cnseninsebinibieseaacoetet 3,4

Tollett v. Henderson,

BEE TR Bre CEST AD keenssinicdesotirnininnecissihinnianioabonitions 3

Vallinoto v. DiSandro,

I Base WE es RIE issn vc sccn cans asctesvacennnansennce 12

In re Wolfram,

Gr Fae PS (Aris: TOTO ssi ict 6

\

iv

Wood v. McGrath, North, Mullin & Kratz,

589 N.W. 2d 103 (Neb. 1999) ........ccseseseseseersersens 11

RULES

ia I i a ee 1

ARIZONA RULE OF PROF’L CONDUCT 1.1 (1990)............. 6,7

ARIZONA RULE OF PROF’L CONDUCT 1.1 cmt.

I ccd vicestsntsnieccighes tepeanessenaoescenceaaiceaheicponidacmesiinaetnens 8

ARIZONA RULE OF PROF’L CONDUCT 1.3 (1990)............ 6,7

ARIZONA RULE OF PROF*L CONDUCT 2.1 (1990) ..........00.. 10

AMERICAN BAR ASSOCIATION MATERIALS

ABA MODEL RULE OF PROF*L CONDUCT 1.1 .............20. 4, 7

ABA MODEL RULE OF PROF’L CONDUCT 1.1 cmt. 5

EOIN sn :0:uhbihsscinchcttethsacepibitdemidagpbiels unvakiscdhalasiceetadapamieummbiin 8

ABA MODEL RULE OF PROF’L CONDUCT 1.2 .0000000....ccceeeee 4

ABA MODEL RULE OF PROF’L CONDUCT 1.3 ...........0.c000000 7

ABA MODEL RULE OF PROF’L CONDUCT 1.3 cmt. 1.......... 8

ABA MODEL RULE OF PROF’L CONDUCT 1.4...000000000000000.. 10

ABA MODEL RULE OF PROF’L CONDUCT 1.4(b)..........0000008 4

ABA MODEL RULE OF PROF’L CONDUCT 1.4 cmt............ 10

ABA STANDARD FOR CRIMINAL JUSTICE 4-4.1

UN TN ciikial sccipcanechedeehaiclietnsrichserbictvenciciedssceempeeneteiin 8-9

ABA STANDARD FOR CRIMINAL JUSTICE 4-4.1 cmt.

SN, SI bsnl assn nti tiiecedessobipanssihitedinsndeeediistbaminncentecbekite 9

ABA STANDARD FOR CRIMINAL JUSTICE 4-4.1

Be re icicineccstsicntacabeiinaiiniicesteersabiiveierhibeoedebicincdiieriiese 4,9

ABA STANDARD FOR CRIMINAL JUSTICE 4-4.1 cmt.

I A Ie eiircctichishcetbucdncicenskiniaadcicbenenielesniniabionacnusimounties 9

ABA STANDARD FOR CRIMINAL JUSTICE 4-3.8

NE FEO dicesncticatnisiesstebothidoiseislaapietiovsaudichbdmenenonns 10-11

OTHER AUTHORITIES

Carol Rice Andrews, Standards of Conduct for

Lawyers: An 800-Year Evolution, 57 SMU L. REV.

FE Cee bschiccknsciinsdhindjatevombiadhinvabcteatrsioestcilermteqecictessdel 14

MALLEN & SMITH, 2 LEGAL MALPRACTICE, § 14.1

TI cliinisiaiesbsctishisiseniciicicanctecstneneipensapivensaicimbiaaniongeastapliniatiacen 12

FLOYD R. MECHEM, A TREATISE ON THE LAW OF

Pe Be CE ectinsevsnrcccincesninceticpinitichisisinesdnedipcasiiannies 13

vi

FLOYD R. MECHEM, A TREATISE ON THE LAW OF

INGENCY § 297 (1994) oan sesenscnconenneesece

FLOYD R. MECHEM, A TREATISE ON THE LAW OF

AGENCY § 2188 (1914) ...ccsscsonssecsssnsseccessnsnseeseevnneceen

RESTATEMENT (THIRD) OF THE LAW GOVERNING

Jonathan Rose, The Legal Profession in Medieval

England: A History of scene 48 SYRACUSE L.

CHARLES W. WOLFRAM, MODERN LEGAL ETHICS

See eS eh tae Ebina ae oR

Vii

BRIEF AMICUS CURIAE OF THE AMERICAN BAR

ASSOCIATION IN SUPPORT OF RESPONDENT

INTEREST OF THE AMICUS

The American Bar Association (“ABA”) is the

principal voluntary national membership organization

of the legal profession. Its more than 413,000 members

include prosecutors, public defenders, private lawyers,

legislators, law professors, law enforcement and

corrections personnel, law students, and a number of

non-lawyer “associates” in allied fields.?

The ABA has a well-established tradition of

advocating for the ethical and effective representation

of all clients and has drafted, promulgated and

interpreted rules of professional conduct for almost a

century. In 1908, the ABA adopted the Canons of

Professional Ethics and in 1913, the ABA established

the Standing Committee on Professional Ethics. In

1969, the ABA adopted the Model Code of Professional

Responsibility which was subsequently adopted by the

: Pursuant to Supreme Court Rule 37.6, amicus certifies that

no counsel for a party authored this brief in whole or in part, and

that no person or entity, other than the amicus, its members, or

counsel, has made a monetary contribution to this brief's

preparation or submission. In addition, the parties have

consented to the filing of amicus briefs in this matter.

Neither this brief nor the decision to file it should be

interpreted to reflect the views of any judicial member of the

American Bar Association. No member of the Judicial Division

Counsel has participated in the adoption or endorsement of the

position of this brief, nor was it circulated to any member of the

Judicial Division Counsel prior to filing.

vast majority of state and federal courts. In 1983, the

ABA drafted the Model Rules of Professional Conduct.

Today, all but a handful of jurisdictions have adopted a

version of the Model Rules. Arizona adopted the ABA

Model Rules of Professional Conduct with some

amendments on February 1, 1985.

Since August 1908, when the ABA adopted the

original Canons of Ethics, an unbroken thread that

runs through every iteration of each set of rules has

been the lawyers’ dedication to the client’s cause,

competence in every endeavor, diligence in the timely

provision of legal services, and communication with

the client at every step of the way so that client

decisions only follow well informed discussions with

their lawyers. As the amicus in the present matter, the

ABA can provide this Court with a description of the

ethical norms the ABA believes this Court should

apply to the questions this case presents. Accordingly,

the brief of the amicus will focus on the lawyer's ethical

obligations as defined by the ABA Model Rules of

Professional Conduct as adopted by the Supreme

Court of Arizona.

SUMMARY OF THE ARGUMENT

A judicial determination about the adequacy of

counsel’s efforts in defending a capital defendant

requires inquiry into whether counsel adequately

advised the client of the role and purpose of presenting

mitigating evidence, whether counsel sought to locate

mitigating evidence, whether counsel unreasonably

failed to uncover crucial evidence, and whether

counsel made sound judgments in withholding

mitigating evidence. In the instant case, the Court of

Appeals reasonably found that the record has not been

developed on those issues. The merits of Landrigan’s

Sixth Amendment claim should not be reached without

first developing and analyzing such a complete factual

record. Failure to require the parties to develop such a

record would cast uncertainty on well-acknowledged

standards governing the duty of lawyers to advise their

clients knowledgeably only after conducting a

sufficient investigation to inform themselves about the

essential facts bearing on the client’s rights and

interests. A decision on the merits must be based on

the ap lication of law to established facts regar ling the

lawyer’s investigation and advice so that defense

lawyers can be instructed as to what is required to

meet their ethical obligations.

Under Strickland v. Washington, 466 U.S. 668

(1984), a valid ineffective assistance of counsel claim

requires the habeas petitioner to show that counsel's

performance was deficient and that the deficiency

prejudiced the defense? The proper measure of

lawyer performance under the first prong of the

Strickland test is “simply reasonableness under

2 It should be noted that the same factual basis that is

necessary to make a determination as to the performance prong of

Strickland is also at least partially necessary to make any

determination regarding the waiver issue under the prejudice

prong of Strickland. Both inquiries-require examination of whether

counsel informed Landrigan of the nature of mitigation evidence,

its importance, the kinds of mitigating evidence potentially

applicable to Landrigan’s case based upon counsel's reasonable

investigation, and the potential consequences of presenting or not

presenting such evidence. See Tollett v. Henderson, 411 U.S. 258,

268 (1973).

prevailing professional norms.” 466 U.S. at 688. These

professional norms exist in many forms, including

ethical rules of conduct, ABA Standards and common

law duties. See id. at 688-89.

Several interrelated professional norms of

lawyer performance are relevant to the matter

presently before the Court. As a fundamental

principle, lawyers are agents of their clients and, as

such, they should obey their clients and pursue their

clients’ objectives so long as the clients are competent

and the clients’ objectives are not illegal or unethical.

See ABA MODEL RULE OF PROF’L CONDUCT 1.2;

CHARLES W. WOLFRAM, MODERN LEGAL ETHICS 146, 164

(1986). However, before eliciting and then following

their clients’ directions, lawyers have a duty to advise

and inform their clients to ensure that any client

decisions regarding the representation are informed

ones. See ABA MODEL RULE OF PROF’L CONDUCT 1.4(b).

In turn, to provide competent information and advice

to clients, lawyers must adequately investigate the

matters at issue. See ABA MODEL RULE OF PROF’L

CONDUCT 1.1; ABA STANDARD FOR CRIMINAL JUSTICE 4-

4.1. Simply put, counsel has obligations to provide

information and advice based upon adequate

investigation and research.

The existence of these obligations gives rise to a

series of factual questions that must be addressed in an

evidentiary hearing before the merits of Landrigan’s

constitutional claim can be adjudicated. The present

record, however, is silent regarding whether - and to

what extent - counsel informed Landrigan about the

purpose of mitigating evidence. It is also undeveloped

with respect to the scope of counsel’s investigation into

mitigating evidence, the kinds of mitigating evidence

that were potentially available in Landrigan’s case, and

the advantages and disadvantages of presenting that

evidence. Accordingly, the Ninth Circuit majority

properly determined that a hearing on remand was

necessary to develop these critical facts. See Marshall v.

Hendricks, 307 F.3d 36, 110 (3d Cir. 2002) (“. . . under

’ Strickland the reviewing court must consider whether

counsel’s performance was substandard by employing

a specific inquiry into what counsel did and why, and

comparing that to what the [defendant] urges should

have been done; such an ey cannot rest on

generalized assumptions.”).

ARGUMENT

Established Ethical Rules, Practice Guidelines,

Common Law Principles, and Constitutional

Jurisprudence Provide the Prevailing Professional

Norms Under Which the Reasonableness of

Counsel’s Performance Should Be Judged.

Although the record is currently silent regarding

defense counsel’s investigation and communication

with Landrigan prior to Landrigan’s sentencing, the

standards to be applied to those undiscovered facts are

well-established, fundamental principles governing the

attorney-client relationship. Having firmly planted

historical roots in the common law governing fiduciary

and agency relationships, the applicable professional

norms require a lawyer to be competent and diligent.

In turn, these broad duties demand that lawyers

investigate facts and inform, advise and develop a

relationship of trust and confidence with their clients.

A. Presently Prevailing Professional

Norms, As Well As Those Prevailing

Professional Norms at the Time of

Landrigan’s Sentencing, Require

Lawyers to Conduct a Reasonable

Investigation and Inform the Client

Regarding Client Decisions.

At the time of Landrigan’s sentencing in 1990,

the ABA Model Rules of Professional Conduct adopted

by the Arizona Supreme Court provided that lawyers

had ethical duties to be competent and diligent and to

communicate with their clients. See ARIZONA RULES OF

PROF’L CONDUCT 1.1, 1.3, 1.4 (1990). In interpreting

these duties, Arizona courts have repeatedly

recognized that lawyers have obligations to investigate

facts and inform the client. Se@ In re Curtis, 908 P.2d

472, 478 (Ariz. 1995) (finding a violation of the lawyer’s

duty of competence where counsel “did not attempt a

thorough review of the matter”); In re Wolfram, 847 P.2d

94, 101 (Ariz. 1993) (finding that defense counsel

violated the rule requiring client communication where

lawyer failed to keep client informed about the status

of the criminal trial and thereby prevented client from

participating in important decisions); In re Cardenas,

791 P.2d 1032, 1034 (Ariz. 1990) (finding that counsel’s

failure to identify and explain important matters to

client violated lawyer’s obligation to communicate

with client); Baird v. Pace, 752 P.2d 507, 511 (Ariz. 1987)

(“Even as to doubtful matters, an attorney is expected

to perform sufficient research to enable him to make an

informed and intelligent judgment . . . .”); State v.

Fisher, 730 P.2d 825, 828 (Ariz. 1986) (finding that

defense counsel acted incompetently because he failed

~ to “properly investigate or utilize vital evidence and

testimony”); State v. Schultz, 681 P.2d 374, 376 (Ariz.

1984) (noting that counsel has a “duty to investigate”

and “explore all avenues leading to facts relevant to the

merits of the case”); State v. Lopez, 412 P.2d 882, 886

(Ariz. App. 1966) (“It is counsel’s duty to investigate

carefully all defenses of fact and law that may be

available to the defendant... .”). |

1. Prevailing Professional Norms

Require a Lawyer to Investigate.

In 1990, codifications of the rules governing

Arizona lawyers required lawyers to be competent and

diligent. See ARIZONA RULE OF PROF’L CONDUCT 1.1

(requiring lawyers to provide “competent

representation” which demands “the legal knowledge,

skill, thoroughness and preparation reasonably

necessary for the representation”); ARIZONA RULE OF

PROF’L CONDUCT 1.3 (1990) (requiring lawyers to act

with “reasonable diligence and promptness in

representing a client”); see also ABA MODEL RULES OF

PROF’L CONDUCT 1.1, 1.3. Those same requirements

remain in full force today, both in Arizona and in more

than 45 jurisdictions that follow the ABA Model Rules

on competence and diligence. See RESTATEMENT

(THIRD) OF THE LAW GOVERNING LAWYERS § 52 (stating

that lawyers must “exercise the competence and

diligence normally exercised by lawyers in similar

circumstances”).

In practice, a competent and _ diligent

representation requires adequate preparation and

research by the lawyer. See State v. Fisher, 730 P.2d 825,

828 (Ariz. 1986) (finding that defense <sunsel acted

incompetently because he failed to “properly

investigate or utilize vital evidence and testimony”);

State v. Schultz, 681 P.2d 374, 376 (Ariz. 1984) (noting

that counsel has a “duty to investigate” and “explore all

avenues leading to facts relevant to the merits of the

case”); see also ABA MODEL RULE OF PROF’L CONDUCT

1.1 cmt 5. The comments to the 1990 version of

Arizona’s Rule of Professional Conduct 1.1 explain that

“adequate preparation” demands “inquiry into and

analysis of the factual and legal elements of the

problem.” ARIZONA RULE OF PROF’L CONDUCT 1.1 cmt.

_ (1990): In addition, the comments explain that

adequate preparation in a given matter will vary

depending upon what is at stake in the litigation such

that matters of significant consequence demand more

attention~and preparation. Id.; see also ABA MODEL

RULE OF PROF’L_ CONDUCT 1.3 cmt 1. The 1990 version

of Arizona Rule 1.3 describes diligent preparation as

allowing counsel to “take whatever lawful and ethical

measures are required to vindicate a client's cause or

endeavor.” ARIZONA RULE OF PROF’L CONDUCT 1.3 cmt.

(1990).

If one applies the foregoing principles to a

capital case like Landrigan’s, the ethically mandated

measures that a diligent defense lawyer was required

to pursue had to include a reasonable investigation of

mitigating circumstances that had the potential to save

the client from a death sentence. See State v. Carriger,

645 P.2d 816, 819 (Ariz. 1982) (noting that, at a

minimum, defense counsel has an obligation to prepare

and present “available pertinent mitigating evidence”

at the penalty phase); ABA STANDARD FOR CRIMINAL

JUSTICE 4-4.1 (2d ed. 1980) (“It is the duty of the lawyer

to conduct a prompt investigation of the circumstances

of the case and to explore all avenues leading to facts

relevant to the merits of the case and the penalty in the

event of conviction.”); ABA STANDARD FOR CRIMINAL

JusTICE 4-41 cmt. (2d ed. 1980) (“The lawyer has a

substantial and important role to perform in raising

mitigating factors both to the prosecutor initially and to —

the court at sentencing. . . . Investigation is essential to

fulfillment of these functions.”).3

Far from being able to adjudicate whether

Landrigan’s lawyer fulfilled his investigative duties

under the particular circumstances of this case (or to

assess the consequences of any failure on his part to

fulfill those duties), a court handicapped by the present

undeveloped record cannot even define those duties

with the “concreteness, definiteness, [and] certainty”

demanded for responsible constitutional adjudication.

Rescue Army v. Municipal Court, 331 U.S. 549, 573 (1947).

The current record indicates only that Landrigan’s

counsel apparently subpoenaed two of Landrigan’s

family members to testify at the penalty phase; the

record is bare of any facts regarding whether counsel

took any action to investigate the other types of

mitigating evidence that Landrigan now claim should

have been presented on his behalf and if not, why not.

Without these crucial facts, a court cannot make a fully

informed decision about the issues central to the merits

of Landrigan’s Sixth Amendment claim.

3 The Third Edition of the ABA Standards of Criminal

Justice, which is currently in effect, enumerates the same duty to

investigate. See ABA STANDARD FOR CRIMINAL JUSTICE 4-4.1 (3d

ed. 1993); ABA STANDARD FOR CRIMINAL JUSTICE 44.1 cmt. (3d ed.

1993).

10

2. Prevailing Professional Norms

Require a Lawyer to Inform and -

Advise the Client Regarding

Client Decisions.

At the time of Landrigan’s sentencing, the

Arizona Supreme Court had adopted Rule 1.4 of the

ABA Model Rules of Professional Conduct, which

required lawyers to inform and advise their clients. See

ARIZONA RULE OF PROF’L CONDUCT 1.4 (1990) (“A

lawyer shall explain a matter to the extent reasonably

necessary to permit the client to make informed

decisions regarding the representation.”); ARIZONA

RULE OF PROF’L CONDUCT 1.4 cmt. (1990) (“The client

should have sufficient information to participate

intelligently in decisions concerning the objectives of

the representation and the means by which they are to

be pursued . . . .”); ARIZONA RULE OF PROF’L CONDUCT

2.1 (1990) (“In representing a client, a lawyer shall

exercise independent professional judgment and

render candid advice.”); see also ABA MODEL RULE OF

PROF’L CONDUCT 1.4 cmt. (“Reasonable communication

between the lawyer and the client is necessary for the

client effectively to participate in the representation...

. The client should have sufficient information to

participate intelligently in decisions concerning the

objectives of the representation and the means by

which they are to be pursued... .”). Similarly, the

ABA Standards for Criminal Justice apply the same

requirement in the criminal defense context, providing

that “[dJefense counsel should explain developments in

the case to the extent reasonably necessary to permit

the client to make informed decisions regarding the

representation.” ABA STANDARD FOR CRIMINAL JUSTICE

11

4-38 (3d ed. 1993). In practice, these basic

requirements have been endorsed by courts across the

country for more than a century.*

Again, the current record in this case is

insufficiently developed to determine whether

Landrigan’s lawyer met these long-recognized duties

of consultation and informed advice, or even to specify

the precise nature of those duties under the particular

circumstances of Landrigan’s prosecution. Without

knowing the extent of counsel’s investigation of

potentially mitigating factors, the extent to which he

informed Landrigan about the fruits of that

investigation and the value of such mitigation

evidence, or even the extent to which counsel

discussed with Landrigan that counsel planned to

subpoena the family members, the court does not have

the necessary facts - the adequate record that the

remand ordered by the Ninth Circuit would provide -

to measure counsel’s performance. To rule on the

merits of Landrigan’s Sixth Amendment claim without

a solid factual basis could only serve to inject

uncertainty into the standards that the criminal defense

bar must rely upon to conform their conduct.

‘ See e.g., Baker v. Humphrey, 101 U.S. 494, 500 (1879) (“It is

the duty of an attorney to advise the client promptly whenever he

has any information to give which it is important the client

receive.”); Wood v. McGrath, North, Mullin & Kratz, 589 N.W. 2d

103, 114 (Neb. 1999) (“A lawyer should exert his or her best efforts

to ensure that the decisions of a client are made only after the

client has been informed of relevant considerations.”); People v.

Mattson, 336 P.2d 937, 949 (Cal. 1959) (“The right of an accused to

the services of an attorney contemplates that the attorney will

investigate possible defenses or alternative procedures and advise

the accused of his conclusions . . . .”).

12

B. The Fiduciary Obligations of Lawyers

Reflected in Contemporary Professional

Norms Derive from a Deeply-Rooted

Common Law Tradition.

The fiduciary duties reflected in the foregoing

professional norms governing attorney-client relations

have historical roots that predate and exist

independently of modern rules of professional conduct

and practice guidelines. See MALLEN & SMITH, 2 LEGAL

MALPRACTICE, § 14.1 (2006); Vallinoto v, DiSandro, 688

A.2d 830, 845 (RI. 1997) (noting that the fiduciary

obligations of lawyers existed before rules of

professional conduct and require lawyers to

competently represent their clients’ interests and

diligently carry out all the obligations owed to them).

The fiduciary duties of lawyers toward their

clients derive in part from the common-law of agency.

See CHARLES W. WOLFRAM, MODERN LEGAL ETHICS 146

(1986). In an early 20 century treatise on agency law,

Floyd R. Mechem noted that the attorney-client

relationship was one of “trust and confidence” and

further, that “the rules which govern the conduct of

other persons standing in fiduciary relations, apply

with special force to the dealings of the attorney with

his client.” FLOYD R. MECHEM, A TREATISE ON THE LAW

OF AGENCY § 2188 (1914).

In explaining these principles of fiduciary law

and their application to the attorney-client relationship,

the treatise clearly articulates duties of competence and

diligence and references a lawyer's obligation to

inform the client and pursue all reasonable and proper

13

avenues toward obtaining relief for the client. For

instance, with respect to counsel’s duty to inform and

advise the client, Mechem reports that “it is always the

duty of an agent . . . to fully inform the principal of all

facts relating to the subject-matter of the agency which

come to the knowledge of the agent, and which it is

material for the principal to know for the protection of

his interests.” Id. § 1207.

Furthermore, with respect to the obligations of

diligence and investigation, the common law provided

that “it [was] the duty of the attorney, who undertakes

the collection or enforcement of a claim, to prosecute

that object with reasonable diligence” and that any

such attorney must “not permit the claim to be lost

through his negligent inattention to his duty.” Id. §

2197 (citing Stevens v. Dexter, 55 Ill. 151 (1870); Goodman

v. Walker, 30 Ala. 482 (1857); Cox v. Sullivan, 7 Ga. 144

(1849); Fitch v. Scott, 3 How. (Miss.) 314 (1839); Gilbert v.

Williams, 8 Mass. 51 (1811)). This undertaking to

exercise reasonable diligence required the attorney to

“sue out all process, mesne as well as final, which may

be necessary to effect the object” of the representation.”

Id. § 2197. In other words, for centuries, the common

law has recognized the basic obligations of the lawyer

to inform, investigate, and carry out his representation

with competence and diligence.

Regarding the lawyer's duties of diligence and

preparation, George Sharswood explained that a party

has a right “to have every view presented to the minds

of the judges” who decide their cases, and further, that

“the office of the counsel is to assist [clients] by doing

that which the client in person, from want of learning,

14

‘ experience, and address, is unable to do in a proper

manner.” GEORGE SHARSWOOD, PROFESSIONAL ETHICS

26 (1854). Simply put, counsel had a duty to put his

expertise and knowledge to work preparing and

investigating “all fair arguments arising on the

evidence.” Id. at 44. Moreover, as to a lawyer’s duty to

inform and advise the client, Sharswood summarized

the obligations of counsel in observing that “{iJt is in

some measure the duty of counsel to be the keeper of

the conscience of the client; not to suffer him, through

the influence of his feelings or his interest, to do or say

anything wrong in itself, and of which he would

himself afterwards repent.” Id. at 46. In other words,

Sharswood recognized that lawyers have an obligation

to use their experience and knowledge not only to

investigate the client’s cause, but also to inform the

client as to the consequences of the client’s decisions

and advise him or her against short-sighted or

uninformed choices.

In sum, the fundamental obligations of lawyers

to act diligently and competently are centuries-old

concepts that, in practice, require lawyers to

investigate, inform and advise their clients.5 These

obligations, which lie at the heart of Landrigan’s

habeas petition, also have a long tradition of being

strictly guarded and enforced by the courts. In light of

this historical context, the professional norms dictated

$ Indeed, contemporary scholars have traced the fiduciary-

_ type obligations of attorneys back even further to medieval times

in England and elsewhere. See, e.g., Carol Rice Andrews, Standards

of Conduct for Lawyers: An 800-Year Evolution, 57 SMU L. REV. 1385

(2004); Jonathan Rose, The Legal Profession in Medieval England: A

History of Regulation, 48 SYRACUSE L. REV. 1 (1998).

15

by more contemporary rules of professional conduct,

practice guidelines and case law are best understood as

_no more than the current reflections of deeply-rooted,

traditional and fundamental fiduciary principles.

ta Because These Ethical Questions Cannot

Be Answered on the Present Record,

Remand is Required.

The duties of competence, diligence, and

communication required defense counsel to fulfill

several obligations relating to the penalty phase of

Landrigan’s trial. First, counsel had a duty to conduct

a reasonable investigation into potentially mitig.ting

circumstances prior to the sentencing hearing. Second,

he had a duty to inform Landrigan about the progress

of that investigation and the various kinds of

mitigating evidence potentially available to him.

Third, before acquiescing in any client decision to

forego presentation of any mitigating evidence, counsel

had a duty to advise Landrigan about the importance

of mitigating evidence and the consequences of

presenting or not presenting it.

On the present record, one cannot tell what

minimum steps Landrigan’s lawyer needed to take in

order to satisfy these ethical obligations, still less

whether he took them. The entire course of dealings

between Landrigan and the lawyer remains obscure

and unexamined in the record presented to the Ninth

Circuit and this Court. The colloquy reflected in the

transcript at Landrigan’s sentencing hearing raises

important questions, but does not answer them. Under

those circumstances, the Ninth Circuit’s decision to™

16

remand the case to the District Court for development

of an adequate factual record was the wise and

necessary precondition for responsible Sixth

Amendment adjudication. Only by such a remand can

the district court and any subsequent appellate court

obtain the facts necessary for a fully informed

specification and determination of the constitutional

issues raised by Landrigan’s ineffective-assistance

claim.

z CONCLUSION

For the foregoing reasons, the ABA respectfully

submits that the judgment of the Ninth Circuit Court of

Appeals should be affirmed.

Respectfully submitted,

/s/

Karen J. Mathis

President

American Bar Association

321 N. Clark Street

Chicago, Illinois 60610

OF COUNSEL:

Lawrence J. Fox

David J. Kessler

Kathryn E. Bisordi