Judge warns about 'unfettered' disclosure of client secrets in lawyer response to unfiled-appeal claim

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A federal magistrate judge has ordered a West Virginia lawyer accused of ineffective assistance of counsel to respond to his one-time client’s allegations in a way that limits disclosure of confidential information.

U.S. Magistrate Judge Cheryl Eifert of Charleston, West Virginia, said lawyer Roger Lambert should respond to allegations that he failed to file an appeal for the client, Bloomberg Law reports. Eifert ruled in a Sept. 17 opinion.

Eifert said Lambert could reveal once-confidential client communications, but only as they related to allegations by the former client, Anthony Cruz.

“Simply put,” Eifert wrote, “the filing of an ineffective assistance of counsel claim does not operate as an unfettered waiver of all privileged communications.”

Cruz had filed a motion to set aside or correct his sentence due to ineffective assistance of counsel. Cruz maintained Lambert failed to file the appeal even though he had legitimate issues to raise with an appeals court.

Eifert referred to a July 2010 ethics opinion by the ABA Standing Committee on Ethics and Professional Responsibility. The opinion concluded that disclosure of confidential client information may be justified in some circumstances when a client makes an ineffective assistance claim, but disclosure should be limited to what the attorney believes is reasonably necessary. The opinion also said disclosure should be confined to “court-supervised” proceedings.

Lambert should file an affidavit and documents pertinent to resolution of Cruz’s claim, Eifert said. The documents may be redacted to the extent they address other aspects of the representation.

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