Proposed Ethics Opinion: Defense Lawyers May Assist the State in Responding to Claims of Ineffective Assistance

Criminal defendants, especially those sentenced to long prison terms, sometimes try to attack their convictions and sentences by claiming that their trial lawyers provided ineffective assistance of counsel. The state sometimes seeks trial lawyers’ help in answering these claims, and trial attorneys may want to help in order to avoid findings of ineffectiveness. At the same time, trial counsel may have ongoing duties of loyalty and confidentiality that make it inappropriate simply to open their files to the state. The State Bar just issued a proposed ethics opinion — Proposed 2011 FEO 16 — concerning how to balance these competing considerations. It’s available in full here. The Bar’s summary of the opinion is as follows:

Proposed opinion rules that a criminal defense lawyer accused of ineffective assistance of counsel by a former client may share confidential client information with prosecutors to help establish a defense to the claim so long as the lawyer reasonably believes a response is necessary and the response is narrowly tailored to respond to the allegations.

In other words, the Bar may soon rule that a defense lawyer may assist the state in responding to allegations of ineffective assistance of counsel, perhaps by discussing the case with a prosecutor or by preparing an affidavit summarizing the attorney’s view of the relevant facts. The Bar views such assistance as permitted under Rule 1.6(b)(6), which allows a lawyer to reveal otherwise confidential information as necessary to respond to allegations concerning the lawyer’s representation of a client. The proposed opinion does emphasize that “lawyers who choose to respond to claims of ineffective assistance of counsel . . . [must] respond in a manner that is narrowly tailored to address the specific facts underlying the specific claim. Simply put, the pursuit of an ineffective assistance of counsel claim by a former client does not give the lawyer carte blanche to disclose all information contained in a former client’s file.”

The proposed opinion expressly declines to follow an opinion on the same subject recently adopted by the American Bar Association. ABA Formal Opinion 10-456, available here, asserts that “it is highly unusual for a trial lawyer accused of providing ineffective representation to assist the prosecution in advance of testifying” at a hearing on collateral review. That’s an empirical question, and my experience is contrary to the ABA’s conclusion, but it’s probably neither here nor there as to the ethics issue. On the ethics issue, the ABA points out that while a claim of ineffective assistance waives the attorney-client privilege and work product protections as to information needed to respond to the claim, a defendant and his prior attorney may disagree about the scope of the implied waiver. Therefore, the ABA reasons, the attorney ought not disclose anything outside a judicial proceeding, during which the defendant will have an opportunity to object to disclosure. Nor is extra-judicial disclosure normally “necessary” to respond to the defendant’s claim, because many claims of ineffective assistance are dismissed on procedural grounds, while the remainder, in the ABA’s view, may be answered adequately in court. Thus, the ABA concludes that “it is highly unlikely that a disclosure in response to a prosecution request, prior to a court-supervised response by way of testimony or otherwise, will be justifiable.”

I welcome any thoughts about this issue generally and about the Bar’s proposed opinion specifically. If I receive substantive comments, either on the blog or by email, I’ll forward them to the Bar.

4 thoughts on “Proposed Ethics Opinion: Defense Lawyers May Assist the State in Responding to Claims of Ineffective Assistance”

  1. I was reading this about the ineffective assistance of counsel and I am curious how the laws read when a client was under the influence during the signing of a plea and the attorney asked the client to not disclose about the substance that had been taken that day. Is that legal?

  2. No, no, no. Been in practice 31 years and I believe this is a terrible idea. We should adopt the ABA standard to protect our clients. We all know ineffective claims are coming when we represent those are convicted of serious offenses. We promise as attorney’s to protect our clients confidences.

  3. I would like to know if during a plea hearing the Judge states that there is a bill of informaton thst needs to be signed but continues without the signature from the defendant. After being sentenced it was then presented to the defendant to sign. Not wanting to sign the bill of information because of the new information added that he was not made aware of durng the plea agreement, the defendant, was told by his attorney to sign or pull 40years instead of 4. The defendant did sign on hi way out of the court room as he was allowed to go home and report the followin day to start his sentence but he did not sign within the desinated area. Sometime after someone drew a line from the blank signature line to where the defendant did sign. My question is would this be considered ineffective assistance of counsel? If not, would the fact that the attorney did nothng on his clients behalf for the entire 2years they waited for a court date and that the attorney did not interview one wittness, including the one interviewd by the state that stated he was almost sure he was with the defendant on the night in question and all he needed was to look at the defendants work schedule to be sure. The attorney was aware of this interview however the defendant was not. Would this be grounds for ineffective assistance of counsel?

  4. Unbelievable but not surprising, the BAR and rules relating to lawyers get sleazier by the day. I didn’t think it was possible for the legal community to become, more morally depraved. Guess I was wrong. First the public pretender does nothing for his client, when the client complains, his pretender throws him completely to the wolves. Why even bother with the charade? Is there no help for a widows son? Not in a courtroom, you have to be corrupt to work there.


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