Monday, July 14, 2008

Counsel's Unkept Promise Justifies Late Filing

The Supreme Court of Missouri reversed and remanded the dismissal of a claim for postconviction relief filed by a defendant serving a 30 year prison sentence. After the conviction was affirmed, the defendant was contacted by a public defender who told him to prepare his motion and send it to her to file. The defendant sent the motion but the public defender failed to file it. The court found that there was an attorney-client relationship although the lawyer had not been formally appointed:

Mr. McFadden had no other attorney handling his post-conviction matters. The public defender undertook to represent Mr. McFadden when she provided legal advice and directed him to provide the motion directly to her for filing. Mr. McFadden reasonably relied upon these instructions. At that time, no 29.15 motion having yet been filed, no case existed to which a public defender could formally be appointed. The fact that the court had yet to appoint the public defender or that she had not yet entered an appearance is in no way dispositive as to the formation of an attorney-client relationship, however. This Court looks to the substantive nature of the contacts within a relationship, regardless of what formal or procedural incidents have occurred, to determine whether "advice and assistance of [the] attorney is sought and received." Longo, 789 S.W.2d at 815.

Further:

This Court emphasizes that this opinion is limited to this specific factual scenario where counsel overtly acted and such actions prevented the movant's timely filing. The record shows Mr. McFadden timely prepared his motion for post-conviction relief and provided this motion to his counsel well before it was due to the court. Counsel, however, actively interfered with the timely filing and, despite her receipt of Mr. McFadden's motion for post-conviction relief on September 28, 2006, she did not file his motion until October 12, 2006, one day after the filing date. Such active interference, as demonstrated here, constitutes abandonment. In these unique circumstances, the motion court is authorized to reopen the otherwise final post-conviction proceeding.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2008/07/the-supreme-cou.html

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Comments

I am a disabled veteran litigating a civil claim pro se because my attorney did not challenge the defendants motion for a summary judgement. thus, my claim was dismissed on a technicality. SEE LEE VS USA et al District Court #:03-00412 CV-T-E and then see Appeal#:08-10565-F.

Posted by: Stephen Lee | Jul 16, 2008 7:48:08 AM

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