After a court decision could overturn a former client's conviction, does the lawyer who handled the case have a duty to go back and advise the client?

Plain-English summary

The inquirer worked for a public defender organization. The facts: an attorney had represented a client convicted of felony murder in the second degree where the underlying felony was assault, and had sent the client a letter at the end of the representation stating that the representation had ended and the lawyer no longer represented the client. The Washington Supreme Court then held, in In re Andress, 147 Wn.2d 602 (2002), that felony murder in the second degree could not be based on assault as the underlying felony, which meant defendants convicted on that theory might have a right to some form of relief.

The committee said that on these facts the representation is at an end, so the convicted person is a former client. Absent an ongoing relationship, or a factual basis for the client reasonably to believe an attorney-client relationship still exists, a lawyer owes no duty to provide further advice or representation to a former client. The committee added one qualification: if the lawyer does provide any advice or representation, it must be competent.

Currency note

This opinion was issued in 2003, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. The competence duty the opinion invokes carried into the current rules (RPC 1.1). The opinion also rests on the substantive criminal-law holding of In re Andress (2002), an area later addressed by the Washington Legislature and subsequent case law. Subsequent rule amendments or later decisions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules and case law before relying on any specific point mentioned here.

In practice

Under this opinion, a lawyer whose representation of a criminal defendant has ended (here, confirmed by a closing letter) is dealing with a former client, and the committee identified no duty for that lawyer to reach back out and advise the former client about a later decision such as In re Andress that might support post-conviction relief. The committee tied the absence of a duty to the end of the attorney-client relationship and to whether the client could reasonably believe the relationship continued. Per the opinion, the one constraint that does apply is competence: if the lawyer chooses to give advice or take on representation, that advice or representation must be competent.

Common questions

Q: Does a lawyer have to notify a former client about a court decision that might overturn the conviction?

A: The committee said no. Once the representation has ended, the person is a former client, and absent an ongoing relationship or a reasonable basis for the client to believe the relationship continues, the lawyer owes no duty to provide further advice or representation.

Q: What makes the person a "former client" here?

A: The committee pointed to the facts that the representation had concluded and the lawyer had sent a letter stating that the representation had ended and that the lawyer no longer represented the client.

Q: If the lawyer does decide to help, are there any limits?

A: Yes. The committee said that if the lawyer provides any advice or representation, it must be competent.

Background and rules framework

The opinion turns on two things. The first is the existence and end of the attorney-client relationship: the committee treated the question of whether any continuing duty exists as governed by whether the representation has ended and whether the client could reasonably believe it continues, rather than by a specifically numbered rule. The second is the duty of competence, Model Rule 1.1 (Washington RPC 1.1), which the committee invoked by stating that any advice or representation the lawyer does provide "must be competent." The opinion does not cite a numbered Rule of Professional Conduct in its text; the competence reference is the rule it applies, and the former-client analysis rests on general principles of when the relationship exists.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.1 / Washington RPC 1.1 (competence), invoked for the requirement that any advice or representation the lawyer provides must be competent

Cases:

• In re Andress, 147 Wn.2d 602 (Wash. 2002), holding that felony murder in the second degree could not be predicated on assault as the underlying felony

See also

• ABA Formal Op. 481: Telling Clients of Your Error
• OSB Op. 2005-11: Former-Client Conflicts
• WSBA Ethics Op. 1056: Adverse to a Former Client

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1271

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 2031
Year Issued: 2003
RPC(s):
Subject: Andress decision and public defenders; ethical duties to former client

The inquirer works for a public defender organization and posed the following:

Facts: An attorney has represented a client in a matter in which the client was convicted of a felony murder in the second degree where the underlying felony was assault. The lawyer has sent the client a letter at the conclusion of the representation informing the client that the representation had ended and that the lawyer no longer represented the client. Subsequently the Washington Supreme Court held In Re Andress, 147 Wn. 2nd 602 (2002) that felony murder in the second degree could not be based on assault as the underlying felony. While the impact of In Re Andress on other cases has not been determined, any defendant convicted of felony murder in the second degree with assault as the underlying felony may have the right to some form of relief.

Issue: Does an attorney who has represented a client have any duty in this circumstance to provide legal advice and/or representation?

Answer: It appears clear on these facts that the representation is at an end and thus the convicted person is a former client. Absent an ongoing relationship or a factual basis for the client reasonably to believe that an attorney-client relationship still exists, a lawyer owes no duty to provide further advice or representation to a former client. If the lawyer does provide any advice or representation it must be competent.