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Counsel – Ineffective Assistance – Deficient Performance — Failure to Research Law – “Unsettled” or Murky Law

State v. John R. Maloney, 2005 WI 74, affirming 2004 WI App 141but nonetheless retaining jurisdiction pending resolution of other issues
For Maloney: Lew A. Wasserman

Issue/Holding: Failure to move to suppress evidence based on asserted violation of SCR 20:4.2 does not support deficient performance, given that applicability of this Rule was not settled:

¶23      The split of authorities described above is important in considering whether Maloney’s trial counsel was ineffective in failing to challenge the admissibility of the videotape evidence based on an alleged violation of SCR 20:4.2.  Ignorance of well-defined legal principles, of course, is nearly inexcusable.  Smith v. Singletary, 170 F.3d 1051, 1054 (11th Cir. 1999).  However, because the law is not an exact science and may shift over time, “‘the rule that an attorney is not liable for an error of judgment on an unsettled proposition of law is universally recognized . . . .'”  Id. (quoting 2 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 17.4, at 497 (4th ed. 1996) (citing cases)); [11] United States v. De La Pava, 268 F.3d 157, 166 (2d Cir. 2001); Johnson v. Carroll, 327 F. Supp. 2d 386, 398 (D. Del. 2004)….¶26      In State v. Thayer, 2001 WI App 51, ¶14, 241 Wis. 2d 417, 626 N.W.2d 811, the court of appeals recognized that “counsel is not required to argue a point of law that is unclear.”  …

¶28      In State v. McMahon, 186 Wis.  2d 68, 84, 519 N.W.2d 621 (Ct. App. 1994), the court of appeals observed that “counsel is not required to object and argue a point of law that is unsettled.” …

¶29 … It explained, “[w]e think ineffective assistance of counsel cases should be limited to situations where the law or duty is clear such that reasonable counsel should know enough to raise the issue.”  Id. at 85.

¶30      Given the unclear and unsettled nature of SCR 20:4.2’s applicability in Wisconsin to the pre-charging criminal investigative setting, we conclude that trial counsel’s failure to challenge the admissibility of the videotape evidence on this ground did not constitute deficient performance.  Although it might have been preferred for Maloney’s counsel to advance the Hammad position in his motion to suppress, basing an ineffective assistance of counsel claim on his failure to do so would be to engage in the kind of hindsight examination expressly disavowed by the Supreme Court in Strickland, 466 U.S. at 689.  Accordingly, we reject Maloney’s first claim.

 [11] Because a lawyer’s performance is evaluated under prevailing professional norms, see Strickland v. Washington, 466 668, 688 (1984), case law and treatises on legal malpractice can be instructive in our analysis.  As the 11th Circuit Court of Appeals explained in Smith v. Singletary, 170 F.3d 1051, 1054 n. 5 (11th Cir. 1999), “ordinarily, at least, lawyers’ acts or omissions that do not rise to the level of professional malpractice, a fortiori, cannot amount to a constitutional violation.”

Maloney argued, on this appeal, that that the prosecutor violated SCR 20:4.2 (no communication between lawyer and opposing party when s/he is represented, without permission) when he wired Maloney’s girlfriend to record their conversations. The court of appeals in effect said, No harm, no foul, on the idea that suppression is only required when there’s been a violation of a constitutional rule, which isn’t true in this instance, 2004 WI App 141, ¶¶11-12. For better or worse, this affirmance, albeit on different grounds, would seem to leave intact the precedential force of the court of appeals’ holding – see, e.g., State v. Gary M.B., 2003 WI App 72, ¶13. In any event, this IAC principle – counsel’s duty to raise (or not raise) “murky” issues – is certainly interesting in its own right, and for further discussion see summary of State v. James R. Thiel, 2003 WI 111


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