ABA Ethics Opinion Explores Limits of Lawyer-Client Confidentiality When Client Appealing Criminal Conviction Claims Lawyer was Ineffective

CHICAGO, Sept. 17, 2010—A criminal defense lawyer is not free to share with prosecutors confidential information related to representation of a former client who was convicted, even if the client claims the lawyer was ineffective, except in rare circumstances.

Lawyers are generally barred by ethics rules from revealing confidential information relating to their representation of a client, unless the client consents to disclosure.  A newly released ethics opinion from the ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 10-456, confirms that rules of professional conduct prevent such disclosures, even to cooperate with prosecutors seeking information to respond to a convicted defendant’s claim that the defense lawyer was incompetent.

The ethics committee cites a 1984 ruling by the Supreme Court of the United States in Strickland v. Washington as establishing that a convicted defendant seeking a new trial or resentencing  based on a claim of ineffective assistance of counsel must show both that the representation at trial was not reasonable by an objective standard and also that there was a reasonable probability the trial would have ended differently if the defense lawyer had performed effectively.  The committee points out that the Court in Strickland expressed confidence in the ability of lower courts to apply that test to separate specious claims from those with merit, making it unnecessary in most cases for defense lawyers to share confidential information related to client representation

The opinion focuses on the situation in which a prosecutor defending the conviction on appeal seeks the trial lawyer’s file or an informal interview with the defense lawyer, to respond to the convicted defendant’s claim of ineffective assistance, or to prepare for a hearing on such a claim.   Although it is highly unusual for a defense lawyer from a trial to assist a prosecutor fighting an appeal, “sometimes trial lawyers have done so, and commentators have expressed concerns about the practice,” says the committee.

Even though such an appeal might damage the defense lawyer’s reputation, the lawyer cannot breach confidentiality rules to cooperate with the prosecutor, except in a judicially-supervised proceeding, according to the opinion.  In the court setting, the lawyer may only disclose information protected by ethics rules if the court requires the lawyer to do so after ruling on claims of privilege or other objections raised by the client or former client.  The “lawyers themselves must raise good-faith claims” asserting the privilege, says the committee.

“Outside judicial proceedings, the confidentiality duty is even more stringent.  Even if information clearly is not privileged and the lawyer could therefore be compelled to disclose it in legal proceedings, it does not follow that the lawyer may disclose it voluntarily” without the client’s informed consent, says the committee

Permitting disclosure outside court-supervised proceedings could undermine important interests protected by the confidentiality rule, Rule 1.6 of the ABA Model Rules of Professional Conduct.  It could “chill some future defendants from fully confiding in their lawyers,” and “might prejudice the defendant in the event of a retrial,” says the opinion.

Formal Opinion 10-456 is available from the ABA Center for Professional Responsibility at http://www.abanet.org/cpr.

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions for the guidance of lawyers, courts and the public interpreting and applying the ABA Model Rules of Professional Conduct to specific issues of legal practice and client-lawyer relationships.  Opinions are dated to reflect when committee members voted, rather than the publication date.

With nearly 400,000 members, the _ is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

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