Capital Area Private Defender Service

TERMS AND CONDITIONS

MAP Services

The Mitigation Advancement Program (“MAP”) offers consultation and assistance to criminal defense attorneys appointed in murder cases in which the State is not seeking the death penalty in meeting their obligations under Strickland v. Washington, 466 U.S. 668 (1984), Wiggins v. Smith, 539 U.S. 510 (2003), the State Bar of Texas Performance Guidelines for Non-Capital Criminal Defense Function, the American Bar Association Criminal Justice Standards for the Defense Function, and the National Legal Aid & Defender Association Performance Guidelines for Criminal Defense Representation (2006).

MAP only provides specific case-related services to criminal defense attorneys defending murder cases in Texas state courts on behalf of indigent clients in which the State is not seeking or has not sought the death penalty. MAP provides services at the following stages: trial, motion for new trial, and post-conviction writ.

MAP’s services may include: (1) individual case consultation and one-on-one coaching; (2) assistance with access to mitigation-related resources; (3) trainings for the benefit of training criminal defense attorneys on mitigation-related topics; and (4) a range of other services and communications that may be offered by MAP related to meeting the professional obligations of criminal defense attorneys in murder cases.

Data Collection

MAP is conducting research to determine whether mitigation is effective in Texas non-death penalty murder cases and whether a centralized resource counsel program is an effective approach to providing assistance and training to appointed counsel.

MAP will be collecting non-privileged quantitative and qualitative data regarding the cases MAP provides assistance with. Information provided to MAP for the purpose of assistance that falls within the attorney-client and work product privileges will not be collected for and will not be used for the research component of the program.

The attorney agreeing to these Terms and Conditions expressly understands that the research component is part of the program and expressly consents to participate in that component through the collection of non-privileged information.

Attorney-Client Privilege and Confidentiality

I agree that I intend to use MAP to receive specialized legal consultation and resources that may assist me in the representation of certain clients and that any client-specific communications or exchange of information between me and MAP is subject to the attorney-client and work product privileges stemming from my representation of the specific client. I understand that MAP’s role is that of a third-party consultant retained by me for the specific purpose of assisting with my legal representation of the client and is therefore covered by such privileges.

Specifically, and without limiting the forgoing, I agree, consistent with Texas Rule of Evidence 503, that all communications between me and MAP (1) are intended to be and will be held as confidential communications, (2) are made for the purpose of facilitating the provision of professional legal services to my clients, (3) are between me and a representative with whom I am contracting to assist with the provision of professional legal services, and (4) that no privilege held by any of my clients has been or will be waived through my relationship with MAP. I understand and agree that, except as expressly stated elsewhere in these Terms and Conditions, MAP will hold any client-specific information in careful confidence unless I expressly verify in writing that the relevant client authorized such disclosure.

I understand and agree that no information that falls within the attorney-client and work product privileges will be used in the research component of MAP unless I expressly verify in writing that the relevant client authorized such disclosure.

Binding Contractual Nature of these Terms and Conditions

These terms and conditions are intended to apply to all criminal defense attorneys who utilize MAP’s services.

The attorney agreeing to these Terms and Conditions (the “Contracting Attorney,” alternatively referred to, for the purposes of the specific terms and affirmations below, “I”) must thoroughly review and agree to the terms below (collectively referred to, along with the entirety of this document, as the “Terms and Conditions”) which are intended to govern the ongoing relationship between the Contracting Attorney and MAP. These Terms and Conditions will apply every time the Contracting Attorney utilizes MAP’s services in the future, including for each case the Contracting Attorney requests assistance from MAP.

By affirmation of these Terms and Conditions on the MAP platform, the Contracting Attorney is expressly agreeing to form a legally binding contract between the Contracting Attorney and MAP.

Accordingly, it is essential that (1) the Contracting Attorney carefully reviews the entirety of these Terms and Conditions, including the specific terms below, prior to affirming agreement to them and (2) the Contracting Attorney must review these Terms and Conditions prior to engaging MAP for any client-specific services in order to determine whether the Terms and Conditions are appropriate for the specific case.

The below specific terms include a series of terms under which the Contracting Attorney is referred to as “I,” and by agreeing to these Terms and Conditions, the Contracting Attorney expressly agrees to be bound by all such terms.

Contracting Attorney Status

I expressly represent that I am an attorney admitted to and in good standing of the State Bar of Texas and I acknowledge that I have an ongoing duty to immediately inform MAP if such standing changes in any way.

Relationship with MAP

I agree that my relationship with MAP shall be a consulting relationship between me and the MAP and that for purposes of these Terms and Conditions, the term “MAP” includes any attorney(s) or other staff, interns, or associates that are a part of MAP.

I agree that the only service MAP will provide is limited-scope legal consultation and assistance in order to assist me in meeting my legal obligations relating to mitigation under Strickland v. Washington, 466 U.S. 668 (1984), Wiggins v. Smith, 539 U.S. 510 (2003), the State Bar of Texas Performance Guidelines for Non-Capital Criminal Defense Function, the American Bar Association Criminal Justice Standards for the Defense Function, and the National Legal Aid & Defender Association Performance Guidelines for Criminal Defense Representation (2006).

I agree further that nothing in these Terms and Conditions shall be construed as creating a partnership, joint venture, or any similar relationship between me and MAP.

No Relationship Between MAP and Contracting Attorney’s Clients

I agree that receiving assistance on specific cases from MAP does not create a contractual relationship of any kind between my clients and MAP. Other than the duties of confidentiality born from from the attorney-client privilege and work product privileges arising from MAP’s assistance to me as a legal consultant on specific cases, MAP shall owe no duty of any kind to my clients. I understand and agree that requesting and receiving assistance from MAP on specific cases does not create a direct attorney-client relationship between MAP or any of its attorneys and my clients.

I agree that prior to submitting any client-specific information to MAP, I will secure consent from the relevant client to utilize MAP, including but not limited to consent to being bound to these Terms and Conditions.

Attorney-Client Privilege and Confidentiality

No Guarantee

I acknowledge and agree that mitigation is a legal area that is complex and client-dependent. I expressly acknowledge and agree that MAP does not make any express or implied guarantees of any kind to me or to my client about the outcomes of any matters I may handle for my clients.

Sole Responsibility for Communications with Client, Decision-Making

I acknowledge and agree that I am solely responsible for my conduct and my actions on behalf of my client and that I must rely on my own research, investigation, professional judgment, and consultation with my clients in determining strategy and making decisions about matters I may be handling and that, with regard to any case I discuss with MAP, all decisions I make and all advice I provide to my client are my full and sole responsibility.

I agree that it is my sole responsibility to communicate with my clients, to deliver and receive information and confirm the accuracy of such information, and to fully discuss and consider all decisions related to my representation of such clients with such clients.

No Obligation to Assist with Post-Conviction or Federal Habeas Matters

In the event that a writ or petition to vacate a conviction or punishment based on ineffective assistance of counsel is brought against me in any case in which I consulted MAP or in the event of any other legal proceeding, grievance, or similar action arising from any such case, I understand and agree that, as a matter of general policy, MAP will only participate in such matter as required by legal process and that MAP is not obligated to assist or participate in any way in my defense. Without limiting the forgoing, I expressly acknowledge and agree that:

MAP is not obligated to assist or participate in any post-conviction matters except as required by legal process;
MAP will only maintain records as provided elsewhere in these Terms and Conditions and that I shall be responsible for maintaining a careful documentary record regarding all of my cases; and

In the event that MAP is obligated to or decides in its sole discretion to participate in any post-conviction matter, I expressly and knowingly waive any conflicts of interest that might arise from such participation.

Termination of Relationship with MAP

I agree that in the event of any breach by me of these Terms and Conditions, MAP may cease providing information, terminate its relationship, and/or pursue any and all other remedies available to MAP.

I agree that my relationship with MAP pursuant to these Terms and Conditions may be terminated at any time by me or by MAP by submission of a written notice by the terminating party of the intent to terminate immediately. In the event I terminated the relationship or MAP terminates the relationship, and that such termination is “for cause” as defined below, MAP’s work on all cases for which I am the attorney will cease immediately. “For cause” is defined as breach of these Terms and Conditions, breach of any other terms (written or oral, express or implied) or expectations of the relationship or any other acts or omissions by me or any third party that materially impact the relationship with MAP or MAP’s ability to provide services.

Mitigation requires the investigation and discussion of extremely sensitive topics. I understand and agree that abusive or harassing behavior will not be tolerated and will result in termination of both the relationship and the services.

Limitation of Liability

I agree that MAP will have no liability to me for any incidental, special, consequential, exemplary, punitive, or indirect damages suffered by me or my client that relate to or arise out of MAP’s services or any decision, transaction, or matter related to the information or assistance provided to me by MAP unless such loss results entirely from MAP’s gross negligence, willful misconduct, or bad faith.

Indemnification

I understand that MAP’s relationship is solely with me and that no contractual relationship is created between MAP, any of its attorneys, and any of my clients. I agree to defend, indemnify, and hold harmless the MAP against any and all claims, liabilities, losses, damages, and/or expenses, including reasonable attorney’s fees and expenses, resulting from any claims by my clients or any other third parties or any breach by me of any of these Terms and Conditions or relating to or arising out of the services MAP provides.

Data Retention

I understand and agree to the following:

MAP shall hold client-specific information in careful confidence, except (a) that MAP may use identifying information such as the county, charge, and disposition, and other publicly available information for the purposes of the research component described elsewhere in these Terms and Conditions and (b) that MAP may provide identifying information such as the client’s name and case number to its third-party funders for the purposes of verifying and validating the provision of services.
MAP may, with my knowledge and written permission, consult other experts in the field of mitigation with the purpose of providing me with the best assistance possible.
MAP will generally retain all identifying client-specific information collected during the course of the relationship for the minimum time required by law, relevant ethical rules, and industry norms, and is authorized by me to promptly destroy such information following the expiration of such time period.
MAP may retain non-identifying information relating to my cases indefinitely and I authorize MAP to use the information for any lawful purpose, including but not limited to aggregation and collection of data, statistical analysis, and eventual publication of the research component described elsewhere in these Terms and Conditions.
MAP will endeavor to secure all information collected during the relationship using reasonably necessary means. In the event of a data breach, however, I agree to hold MAP harmless.
Prior to sharing any client-confidential information with MAP, I will secure consent from my client with specific concern for these Terms and Conditions and I understand that sharing my client’s information with MAP without obtaining his or her informed consent could be a violation of the Texas Rules of Disciplinary Conduct, including Rules 1.03 and 1.05.

Information Regarding Contracting Attorney

I affirm that I will provide MAP with accurate information to the best of my ability regarding (1) my status as a licensed and authorized attorney in good standing in the State of Texas; (2) the firm or the organization for which I work; (3) the fee relationship between me and each client for whose case I request assistance; and (4) any and all other information requested by MAP.

In the event that any of the information I have provided MAP changes, I will promptly update MAP.

I expressly understand and agree that if I depart my present law firm or organization, I will not be entitled to access client-specific information from MAP relating to clients of that law firm or organization.

Payment Obligations

I understand and agree that MAP provides free assistance and that neither I nor my client will be charged for any services provided. I further understand that MAP services are provided through Texas Commission for Indigent Defense and that the services can only be provided to criminal defense attorneys representing indigent defendants in murder cases in Texas state courts.

I understand that I must certify that each case for which I request assistance meets the criteria for this program at the time the initial request is made. I further understand that if any of the criteria change during the relationship with MAP (for example, if the State gives notice of its intent to seek the death penalty), I will notify MAP immediately.

Update of Terms and Conditions

I agree that MAP may update these Terms and Conditions at any time and for any reason in MAP’s sole discretion and that my express agreement to any such updated Terms and Conditions will be required in order to continue providing services to me.

I agree that over the course of my relationship MAP, I may receive or ask to affirm additional terms, conditions, or other documents, including but not limited to (1) terms regarding specific requests for services or (2) terms which I will be asked to affirm when submitting client-specific information to MAP. With regard to all additional terms, whether formal or informal or whether or not expressly affirmed by me, I agree that (1) such terms shall be incorporated into these Terms and Conditions as if fully set forth herein and (2) in the event of any conflict between such additional terms and these Terms and Conditions, these Terms and Conditions shall prevail.

Capital Area Private Defender Service

MITIGATION ADVANCEMENT PROGRAM