Is it true that a public defender cannot defend in a situation where ineffective counsel was a public appellate counsel?

Asked 10 months ago - Saint Louis, MO

Indigent prisoner utilized appellate defender who was ineffective in arguments. Have been advised that a public defender who counsels during Form 40 (motion to vacate,set aside judgmt or sentce) cannot argue appellate counsels errors as they work for the same govrnm't entity. Indigent prisoner wants to use public defender should form 40 be successful, but worried about this issue and public pretenders ability to "get the job done" effectively. Any lawyers do pro bono anymore?

Attorney answers (4)

  1. Robert Edward Caldwell Jr.

    Contributor Level 14

    3

    Lawyers agree

    Answered . I recommend you not apply to the public defender if you are using the term "public pretender". Public defenders are some of the best attorneys around, and better than most private attorneys. They don't hold your hand like we private attorneys do, but they are excellent generally at what they do in the court room and with the legal process. Public defenders are attorneys.

    NEVER describe your facts in an online forum. I have CONFIRMED there is at least ONE county prosecutor that is a... more
  2. Joshua Sachs

    Contributor Level 19

    2

    Lawyers agree

    Answered . Believe me, you don't want pro bono counsel if by pro bono you mean a volunteer attorney who will try to help you without any compensation. Unless your case gets picked up by the pro bono department of a wealthy and well-funded firm (which is unusual) you may find that your attorney bitterly regrets having taken on a massive and time-consuming case for no return. But you probably won't need that, anyway. In most states in any case where you have a right to appointed counsel on appeal the court will appoint special counsel in the event of a conflict of interest. I cannot tell you whether you have such a conflict or not because the answer might depend on the structure of the appellate defender's office in your state. Across the river In Illinois, for example, your case might be assigned to a different district of the State Appellate Defender's office to resolve any conflict problem. I don't know how this is handled in Missouri.

  3. Robert Jason De Groot

    Pro

    Contributor Level 20

    1

    Lawyer agrees

    Answered . The public defender is the criminal pro bono attorney.

    R. Jason de Groot, Esq.,
  4. Jeffrey Lewis

    Pro

    Contributor Level 11

    1

    Lawyer agrees

    Answered . The constitution guarantees a criminal defendant the right to effective counsel. Rules of professional conduct preclude attorneys from representing defendants where there is a conflict of interest. The same office of lawyers would have a conflict of interest in arguing that prior counsel was ineffective. For this reason, in many states, appellate counsel and trial counsel are appointed from different offices. If the same public defender's office that handled the appeal is now arguing ineffective assistance of counsel at the trial level, you should consider getting a different lawyer to consult with to ensure that the ineffective assistance of counsel argument is being pressed as hard as it should.

    Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client... more

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