For the SPD Private Bar Attorney
Appellate Performance Standards
Public Defender staff and appointed private bar attorneys are expected to meet the following minimum performance standards in postconviction and appellate cases. Counsel shall:
- Provide zealous, effective and high-quality representation to the client at all stages of the appointed case.
- Know to a reasonably proficient standard all relevant Wisconsin substantive law and procedure, be familiar with federal law and procedure, and keep abreast of developments in substantive and procedural law.
- Comply in all respects with Rules of Appellate Procedure; Administrative Rules, other rules, laws, and statutes relevant to the case; Rules of Professional Conduct for Attorneys and State Public Defender Policies & Procedures.
- Interview the client to determine the clientís position or goals in the appeal and to detect and explore issues or concerns not reflected in the record. Counsel is expected to speak personally with the client. Counsel shall be available for written and telephonic consultation with the client.
- Provide the client with general information regarding the process and procedures which will be undertaken. Keep the client informed as to all significant developments in the clientís case. Provide the client with a copy of each substantive document filed in the case by both the prosecutor and the defense, except when not permitted by confidentiality or court rules.
- Address issues of bail or release pending appeal, jail credit and restitution, referring such matters to trial counsel when appropriate.
- Thoroughly review the complete circuit court record, all relevant transcripts and the presentence report to identify issues of arguable merit. When warranted, counsel shall also thoroughly review exhibits, discovery materials or other records; consult with trial counsel; and investigate facts or issues alleged outside the record.
- Request and, if approved, utilize experts, investigators and interpreters when appropriate.
- Discuss with the client the merits and the strategy considerations - which include both the potential risks and benefits - of pursuing all identified issues. While it is the clientís decision to decide whether to appeal and what remedy to seek, it is counselís obligation to determine which issues have merit and the manner in which they will be pursued. Counsel, consistent with Jones v. Barnes, 463 U.S. 745 (1983), need not raise every non-frivolous argument and may sift and winnow out weaker issues for strategic advocacy purposes. Counsel must also consider that counselís failure to raise an issue on direct appeal may prevent the client from raising the issue in a subsequent s. 974.06 collateral review proceeding, absent sufficient reason, consistent with State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). If the client insists on pursuing a meritless issue or one counsel has winnowed out consistent with Jones v. Barnes, counsel shall fully inform the client of the options (to proceed as counsel recommends, pro se, or with privately retained counsel) and the consequences of each option.
- If counsel is of the opinion that a case contains no issue of arguable merit, communicate that decision to the client before filing a no-merit notice of appeal or no-merit brief. Counsel must inform the client of any right to a no merit report under the statutes and laws of this state. Counsel must inform the client of the clientís rights and counselís obligations under Wis. Stat. Rules 809.107 (5m) or 809.32. Counsel must inform the client, consistent with State ex rel. Flores v. State, 183 Wis. 2d 587, 516 N.W.2d 362 (1994), of the clientís options (to have counsel file the no-merit report, to discharge counsel and proceed pro se or with privately retained counsel, or to have counsel close the case with no court action) and the possible consequences of each option, including the disadvantages of proceeding without counsel. Counsel must document this exchange and send a letter to the client confirming the clientís choice.
- When filing any motion, conform to the applicable local court rules and practice procedures. Postconviction or postjudgment motions should contain carefully drafted nonconclusory factual allegations and appropriate citations to the record and law warranting relief. It is counselís responsibility to seek extensions for the circuit court to decide motions where appropriate. Counsel shall ensure entry of a written order disposing of the motion.
- When filing a brief, conform to the applicable rules of the court in which the brief is being filed. All briefs shall have a professional, neat appearance free of typographical errors or misspellings. Briefs must adequately and accurately state the facts of the case and contain complete and accurate record citations. Briefs shall make appropriate use of legal authority referenced by a consistent method of citation that conforms to court rules or, where no rule exists, the Harvard Citator. Briefs shall utilize federal and foreign jurisdiction cases and non-case reference materials such as law reviews, treatises, and scientific works where appropriate.
- Inform the client of his or her rights and counselís obligations in regard to proceeding to the next appellate court level and take steps to ensure that such rights as fall within the scope of counselís appointment are not procedurally defaulted.
- Respond in a prompt and forthright manner to all inquiries and requests for information from the client, the parties, opposing counsel, the State Public Defender, the court, the clerk of court, and successor counsel.
- Maintain a complete up-to-date case file for every case. The file shall contain, at minimum, all correspondence, including a closing letter or memo; copies of all documents filed; proof of service for all transcripts, court records or other papers that trigger a time limit; copies of all court orders or decisions; notations in summary form as to all action taken, advice given, and phone and in-person communications; a record of documents provided to the client; and a case activity log or voucher that documents time spent on the case.
- At the conclusion of representation, inform the client in writing of the reason for closing the file and any options for further action the client may have on direct appeal. If counsel cannot reach the client via mail, the closing information and reason why the closing letter was not sent should be recorded in a memo to the file.
- At the conclusion of representation or when a no-merit report is filed, upon request, promptly send the client or successor counsel the transcripts, court record, and any other documents or other property to which the client is entitled.
- Promptly close the file upon completion of representation and submit case closing documents. Retain the client file consistent with the Rules of Professional Conduct for Attorneys and State Public Defender Policy.
- Cooperate with any successor counsel in the case.
Revised October 2006