Moore v. State

LAURA DENVIR STITH, Judge,

concurring.

I concur because Mr. Moore has failed to show that he is entitled to post-conviction relief on these facts. I write separately to note that where counsel affirmatively has told the client that counsel will take responsibility for a matter, then the client has the right to rely on that statement, as this Court recognized in McFadden v. State, 256 S.W.3d 103, 109 (Mo. banc 2008). As the principal opinion notes, McFadden found ineffective assis*704tance where post-conviction counsel did not timely file movant’s pro se motion despite promising to do so. This was so even though, absent counsel’s voluntary undertaking to do so, movant would have been obligated to file his post-conviction motion himself. Id. Having undertaken to file the motion for movant, counsel was obligated to complete that task.

Here, Mr. Moore similarly argues that counsel undertook to inform him when the mandate was issued by the appellate court but failed to do so. If the record supported this argument, then he would be entitled to relief. This is so even though, as the principal opinion notes, Missouri’s rules do not impose a requirement on counsel to inform a client about the issuance of the mandate in the usual case. That is because, once counsel undertakes such an obligation, then a defendant had a right to rely on counsel to complete the undertaking. The failure to do so violates Missouri’s ethical rules.

Rule 4-1.3, “Diligence,” states: “A lawyer shall act with reasonable diligence and promptness in representing a client.” Comment 4 to Rule 4-1.3 explains what this means when a lawyer-client relationship is coming to an end:

4. Unless the relationship is terminated as provided in Rule 4-1.16, a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer’s employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in uniting, so that the client will not mistakenly suppose the lawyer is looking after the client’s affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client, the lawyer should advise the client about the possibility of appeal before relinquishing responsibility for the matter. See Rule k-lMb). Whether the lawyer is obligated to prosecute the appeal for the client depends on the scope of the representation the lawyer has agreed to provide to the client. See Rule 4-1.2.

Rule 4-1.3, Comment 4 (emphasis added).

Rule 4-1.2 allows a lawyer to define the scope of representation of a client. Rule 4-1.4 requires a lawyer to keep the client reasonably informed about the status of the matter, promptly comply with reasonable requests for information, and explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Comment 1 then states:

1. Reasonable communication between the client and the lawyer is necessary for the client effectively to participate in the representation. Rule 4 — 1.4(a)(1) requires that the lawyer keep the client reasonably informed about the status of the matter, such as significant developments affecting the timing or the substance of the representation.

Rule 4-1.4, Comment 1 (emphasis added).

Together, these rules mean that if an attorney has undertaken to inform his or her client about a deadline, then the attorney has an ethical obligation to fulfill that undertaking. Where, as here, failure to comply with that deadline about which counsel undertook to inform the client resulted in the client’s forfeiture of his right *705to seek post-conviction relief, that failure constitutes ineffective assistance.

Here, however, Mr. Moore failed to present evidence that counsel specifically undertook to inform him of when the mandate issued; rather, counsel merely apologized for not doing so. Moreover, so far as the record shows Mr. Moore was aware of the fact that the mandate had issued through the notice sent by the court clerk and was aware of the significance of this date through the information provided by the court at the time of sentencing.

The facts adduced by Mr. Moore are insufficient to show that his counsel undertook to inform him when the mandate issued and, therefore, are insufficient to support his claim that counsel was ineffective in failing in that duty. For this reason, I concur.