Article. Abstract:
After the Supreme Court’s decision in Martinez v. Ryan, some defendants whose first-tier state habeas counsel failed to adequately challenge the ineffectiveness of trial counsel will now be able to raise the ineffectiveness claim in a subsequent federal habeas proceeding. By introducing a new category of claims in federal habeas, however, the Court has also introduced a new and difficult choice for certain convicted defendants as their cases move along the procedural path from state to federal habeas review. Because lawyers must adhere to ethical rules that prohibit conflicts of interest in their representation, each client must choose whether (a) to retain his state habeas counsel through subsequent post-conviction appeals and forego a possible Martinez claim; or (b) to pursue a federal habeas Martinez claim with new counsel. To a habeas bar already burdened by resource scarcity and exacting procedural and timing requirements Martinez adds another potential source of friction between effective representation and professional ethical responsibilities. Because of the additional costs entailed in complying with ethical standards, individual lawyers and those who set the rules that govern them may be tempted to loosen these rules in the name of access to justice. This would be a mistake. To preserve the integrity and autonomy of the legal profession, this temptation must be resisted. This Essay aims to alert the habeas bar to the ethical responsibilities implicated by the Martinez decision, and to provide guidance for what counsel must do in order to comply with his or her professional ethical obligations.