What conversations are permissible between trial counsel and habeas counsel when a habeas corpus petition has been filed? Find out here.
Trial counsel is not a party to the habeas, but rather an anticipated witness in the proceedings. Thus, counsel’s rights and obligations differ from that of an attorney representing a client in a criminal trial or appeal. Trial counsel—even as a witness—has the right to representation by an attorney. And to the extent such representation is secured, neither habeas counsel nor the State should directly contact or communicate with counsel. See Rules of Professional Conduct, Rule 4.2 Communication with Person Represented by Counsel.
Conversations between trial counsel and habeas counsel are permissible. This happens under Rule 1.6(d) of the Rules of Professional Conduct. It can happen even without an authorization executed by the client. This is because Rule 1.6(d) provides that the, “lawyer may reveal…information [relating to representation of a client]…to respond to allegations in any proceeding concerning the lawyer’s representation of the client”). See also Rule 1.9(c)(disclosure of information pertaining to representation of former client prohibited except as permitted or required by other rules). The lack of an authorization, however, limits what can get discussed. Such conversations must get strictly limited to trial counsel’s representation of the client and to the claims raised in the habeas petition. The content of documents cannot be discussed absent prior authorized disclosure.
Trial counsel, of course, is under no legal obligation to speak with habeas counsel. However, much like the voluntary disclosure of file notes, such conversations may be in the client’s (and counsel’s) best interest and may serve to better understand decisions made by counsel at trial. See Strickland, 466 U.S. at 691 (“inquiry into counsel’s conversations with the defendant may be critical to a proper assessment of counsel’s investigation decisions, just as it may be critical to a proper assessment of counsel’s other litigation decisions”).
If you are interested in filing a Connecticut habeas corpus claim, it is a good idea to discuss your situation with an attorney. This will ensure that the case goes as smoothly as possible and you present the best case that you can.