In its groundbreaking decision in Martinez v. Ryan, 556 U.S. 1 (2012), the Supreme Court of the United States held that inadequate assistance of post-conviction counsel could be sufficient “cause” to excuse a procedural default thus allowing a federal court in habeas corpus proceedings to reach the merits of an otherwise barred claim that an inmate was deprived of his Sixth Amendment right to the effective assistance of counsel at trial. The upshot of Martinez is that, if state postconviction counsel unreasonably (and prejudicially) fails to raise a viable claim of ineffective assistance of trial counsel, then there is “cause” (and likely also prejudice), and thus a gateway to merits’ review of the claim in federal habeas corpus proceedings. This is potentially a good thing for many habeas petitioners, but creates a serious and as-yet unappreciated ethical problem for federal habeas counsel who also served as state postconviction counsel. In capital post-conviction cases, the pre-Martinez preference and practice was for continuity of counsel from state to federal court. Now that ineffective representation in state post-conviction proceedings can serve as a basis for review of otherwise defaulted claims, however, a lawyer may be materially limited in her ability to provide ongoing representation by the client’s interest in asserting an ineffectiveness claim.

Lawyers who practice in the area of civil litigation or transactional representation are familiar with these “prior work” conflicts and the solution to them, which is to obtain the informed consent of the affected client after full disclosure of the facts that give rise to the conflict and of the available alternatives. In the capital habeas context, however, the usual apparatus of professional responsibility law, including the informed consent doctrine and the potential of malpractice liability for mishandling a conflict, are ill-suited to dealing with the problem thrust upon petitioners’ counsel by Martinez. Ironically, even though the tort doctrine of malpractice and the rules of professional conduct are both intended to protect clients, the rules allow the possibly negligent lawyer to decide whether client protection requires disclosure and consent, or possibly withdrawal from representation. Given the significance of ineffective assistance of counsel in capital cases, however, this kind of selfmonitoring would be intolerable. Hence, the puzzle presented by Martinez, which recognizes the inability of lawyers to self-monitor, but fails to provide a mechanism for ensuring that the client’s rights are adequately protected.

This Article suggests, therefore, that petitioners’ counsel cannot bear the sole responsibility for solving the Martinez dilemma. The other systemic and repeat players—States’ attorneys and judges—also have to do their part. After all, it is the invocation of procedural defenses in an effort to preclude merits’ review of the habeas petitioner’s federal constitutional claims that creates the procedural morass we have described. This in turn leads to both inefficient litigation and unjust results. Thus, in most instances, if attorneys for the state agreed—either on their own or after being “leaned on” by the court—to waive procedural default and allow the court to proceed to the merits, then litigation would proceed expeditiously and without the ethical taint of potential and actual conflicts of interest. If the claims are not bona fide, they will be rejected. On the other hand, if the issues not previously raised are in fact meritorious, then there are no true “losers” unless one believes that death sentences resulting from a trial infected with prejudicial constitutional error should be carried out. Without some cooperative solution, courts will be faced with motions for substitution of counsel or the appointment of independent counsel to evaluate the performance of state postconviction counsel; state attorneys general will have to deal with the possibility of further delay while the conflict issue is adjudicated. Thus, the tentatively hopeful conclusion to this exploration of the conundrum of Martinez is that the institutional actors with a stake in procedures and outcomes will work together to create an avenue for credible claims of inadequate state post-conviction representation to be investigated competently, for clients to be fully informed and involved in the decisionmaking process, and ultimately the client’s wishes respected.