Under New Jersey's scheme, a post-conviction relief (PCR) attorney is responsible to communicate with his client and investigate the claims. Based on that communication and investigation, counsel then must fashion the most effective arguments possible. In some cases, the record will give PCR counsel a wealth of grist for his or her mill, in some cases, not. At the very least, where communication and investigation have yielded little or nothing, counsel must advance the claims the client desires to forward in a petition and brief and make the best available arguments in support of them. Thereafter, as in any case in which a brief is filed, counsel may choose to stand on it at the hearing, and is not required to further engage in expository argument. In no event however, is counsel empowered to denigrate or dismiss the client's claims, to negatively evaluate them, or to render aid and support to the state's opposition. That kind of conduct contravenes the PCR rule.
Petitioner was convicted of multiple charges in the beating death of a man. He testified that he originally joined in a plan to frighten the victim, but withdrew from the plan when he realized the victim was a friend. He claimed trial counsel had been ineffective in not calling certain witnesses to corroborate his story. PCR counsel opined that trial counsel had made a good strategic decision not to call these witnesses. On appeal, the judgment was affirmed.
Did the PCR counsel violate his duty under N.J. Ct. R. 3:22-6?
The appellate division found that PCR counsel did not faithfully fulfill his obligations under Rule 3:22-6(d) to advance his client's claims regardless of his own views as to their merits. The State argued that PCR counsel acted properly under N.J. Ct. R. Prof. Conduct 3.1, which barred asserting frivolous arguments. The supreme court disagreed. N.J. Ct. R. 3:22-6, and not N.J. Ct. R. Prof. Conduct 3.1, governed the performance of PCR counsel and if the standard of conduct imposed by N.J. Ct. R. 3:22-6 was violated, a new PCR proceeding would be required. While PCR counsel advanced petitioner's claims, he systematically dismantled each contention in the process, thus violating the letter and spirit underlying Rule 3:22-6.