U.S. v. Dorman, 58 M.J. 295

First Principles: Constitutional Matters: Right to Counsel

1. individuals accused of crime shall have the assistance of counsel for their defense through completion of their appeal; this right includes the right to the effective assistance of counsel on appeal

Military Justice Personnel: Defense Function: Right to Counsel

1. individuals accused of crime shall have the assistance of counsel for their defense through completion of their appeal; this right includes the right to the effective assistance of counsel on appeal

Military Justice Personnel: Defense Function: Responsibilities

1. trial defense counsel maintains a duty of loyalty to an appellant during appellate review; the loyalty of defense counsel to his client - before, during, and after trial - is a cornerstone of military justice; thus, even after trial, the trial defense attorney should and can with honor be of much more assistance to his client and to the court; in short, trial defense counsel maintains a continuing obligation to the client beyond the trial’s conclusion, which includes providing reasonable assistance where permitted and refraining from acting in a manner inconsistent with the client’s right to effective assistance of counsel on appeal; implicit in both the right to appeal and counsel’s duty of loyalty is the understanding that trial defense counsel will not interfere with appellate defense counsel’s representation, and to the extent necessary and possible, will assist appellate defense counsel in preparing the appeal
2. trial defense counsel’s post-trial obligations must be consistent with the ethical duty of confidentiality; a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is otherwise permitted by ABA Model Rules of Professional Conduct 1.6; a fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation
3. pursuant to trial defense counsel’s continuing obligation to the client and the corresponding duty of confidentiality, we hold that trial defense counsel must, upon request, supply appellate defense counsel with the case file, but only after receiving the client’s written release; if trial defense counsel believes that disclosure of particular information from the file would entail a material risk to the client, counsel should provide an explanation to the client about the material risks of and reasonably available alternatives to the proposed course of conduct; this protocol supports trial defense counsel’s continuing obligation to the client by providing appellate defense counsel with information counsel may need to be an effective appellate advocate; at the same time, the duty of confidentiality is preserved, as the client must authorize the case file’s release
4. to be sure, there are exceptions to this general rule [that trial defense counsel must, upon request, supply appellate defense counsel with the case file, but only after receiving the client’s written release] which may require withholding the release of some information; for example, if information has been provided to a lawyer on the promise that it will be kept in confidence - even with respect to his client - the confidentiality of that information must be maintained; moreover, to the extent that a statute or court order limits access to specific persons or entities in a manner that has the effect of excluding appellate defense counsel, trial defense counsel is subject to the limitations and procedures governing access under the statute or order; such information might include matter designated by the government as classified and documents governed by protective orders; in such a situation, appellate defense counsel must obtain access through the procedures established by the statute or court order; finally, if for some reason, cost to the attorney is involved in reproducing documents or providing access, the client must provide for reimbursement of those costs

Military Justice Personnel: Defense Function: Appellate Counsel

1. individuals accused of crime shall have the assistance of counsel for their defense through completion of their appeal; this right includes the right to the effective assistance of counsel on appeal
2. pursuant to trial defense counsel’s continuing obligation to the client and the corresponding duty of confidentiality, we hold that trial defense counsel must, upon request, supply appellate defense counsel with the case file, but only after receiving the client’s written release

Military Justice Personnel: Defense Function: Effective / Ineffective Assistance of Counsel

1. when a client raises a claim of ineffective assistance of counsel, trial defense counsel must provide appellate defense counsel with reasonable access to the case file
2. individuals accused of crime shall have the assistance of counsel for their defense through completion of their appeal; this right includes the right to the effective assistance of counsel on appeal

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. whether trial defense counsel must grant appellate defense counsel access to the case file upon request, regardless of whether there is a claim of ineffective assistance of counsel, is a question of law that we review de novo