If Asked, Don’t Tell


(Illustration by Stuart Bradford)

It has become common for criminal defendants to claim ineffective representation by trial counsel in efforts to overturn their convictions. The basis for making such arguments is settled law. In 1970, the U.S. Supreme Court held in McMann v. Richardson that “the right to counsel is the right to the effective assistance of counsel.” And in its landmark ruling in Strickland v. Washington, the court established a test for determining whether a defendant received ineffective assistance of counsel. Under that test, the defendant must establish that the representation fell below an objective standard of reasonableness and that the defendant was prejudiced as a result. The defendant also must show that the prejudice was serious enough to bring the outcome of the trial proceeding into question.

A claim of ineffective representation can put the lawyer who represented the defendant at trial in an awkward position. Rule 1.6 of the ABA Model Rules of Professional Conduct states that a lawyer “shall not reveal information relating to the representation of a client” (or a former client under Model Rule 1.9) without the client’s informed consent, except in certain limited circumstances. Meanwhile, the prosecutor fighting the defendant’s ineffective counsel claim might ask the trial lawyer to disclose confidential information to help establish that the lawyer’s representation was competent. (The Model Rules are the basis for lawyer ethics codes in every state except California.)

At the very least, a claim of ineffective representation can sting a lawyer’s professional pride. But it can also ruin a reputation or even destroy a career, and the chance to seek some vindication may be tempting. “Although it is highly unusual for a trial lawyer accused of providing ineffective representation to assist the prosecution in advance of testifying or otherwise submitting evidence in a judicial proceeding, sometimes trial lawyers have done so, and commentators have expressed concerns about the practice,” observes the ABA Standing Committee on Ethics and Professional Responsibility in its Formal Opinion 10-456 (PDF) (July 14).

In its opinion, the ethics committee pretty much sides with the commentators. If the lawyer is called as a witness in a formal judicial proceeding, states the opinion, he or she may disclose information protected under Model Rule 1.6(a) “only if the court requires the lawyer to do so after adjudicating any claims of privilege or other objections raised by the client or former client.”

Outside judicial proceedings, “in general, the lawyer may not voluntarily disclose any information, even non-privileged information, relating to the defendant’s representation without the defendant’s informed consent,” the opinion states.


The exceptions to the general rule against disclosure of client information are set forth in Model Rule 1.6(b), but the ethics committee identified only one that might apply to ineffective assistance claims. Under Rule 1.6(b)(5), a lawyer may disclose information without the client’s consent only to the extent the lawyer reasonably believes is necessary to “respond to allegations in any proceeding concerning the lawyer’s representation of the client.”

But the committee concluded that disclosure of client information, even in those circumstances, can rarely be justified. “A lawyer may be concerned that without an appropriate factual presentation to the government as it prepares for trial, the presentation to the court may be inadequate and result in a finding in the defendant’s favor,” states the opinion. “Such a finding may impair the lawyer’s reputation or have other adverse, collateral consequences for the lawyer. This concern can almost always be addressed by disclosing relevant client information in a setting subject to judicial supervision.”

In a post-Strickland environment, notes the opinion, “there is no published evidence establishing that court resolutions have been prejudiced when the prosecution has not received counsel’s information outside the proceeding. Thus, it will be extremely difficult for defense counsel to conclude that there is a reasonable need in self-defense to disclose client confidences to the prosecutor outside any court-supervised setting.”

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