A short opinion issued recently by the Court of Appeals, State v. J.C., ___ N.C. App. ___ (Sept. 19, 2017), concerns two open questions about appellate review of a trial judge’s expunction decision. How can a party obtain appellate review? And, how can the person who petitions for an expunction make sure that the records of the appellate proceeding remain confidential? The Court’s opinion does not expressly address those issues, but the case provides guidance on both. Continue reading
Tag Archives: confidentiality
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.
For some time, I’ve been meaning to do a post about attorney-client confidentiality in extreme circumstances. For example, in this Chicago case, defendant X, who was charged with one murder, admitted to his lawyers that he had also committed another murder, one with which defendant Y had been charged. There was other evidence in the second case that lined up with the confession, so the lawyers representing defendant X were certain that defendant Y was completely innocent. But they watched as defendant Y was tried capitally, convicted, sentenced to life in prison, and served 26 years. Meanwhile, defendant X was convicted of the first murder and also sentenced to life in prison. Only after defendant X died did his lawyers come forward with the information that defendant Y was innocent and that defendant X was responsible for the murder. Defendant Y has since been formally exonerated, as described here.
The lawyers who represented defendant X said they consulted with “legal scholars, ethics commissions, [and] the bar association” and were consistently told that the ethics rules prohibited them from disclosing what their client had said. And, of course, Rule 1.6 does provide that “[a] lawyer shall not reveal information acquired during the professional relationship with a client” unless the client consents or one of the Rule’s exceptions apply. The only exception that could have any application here is set forth in Rule 1.6(b)(3), “to prevent reasonably certain death or bodily harm.”
Some of you may recall that a similar situation arose in North Carolina several years ago, when a North Carolina lawyer disclosed a client’s confidence after the client’s death in an effort to exonerate the client’s co-defendant. The lawyer’s theory, apparently, was that when an innocent man is convicted of a crime, his incarceration amounts to “bodily harm” within the meaning of Rule 1.6(b)(3). Although at least one legal scholar criticized that reasoning, the State Bar reportedly dismissed a complaint against the lawyer, suggesting that the Bar viewed the lawyer’s actions as reasonable.
According to this New York Times story, the Virginia State Bar likewise declined to sanction a lawyer involved in a similar case. And apparently at least one state – Massachussetts – expressly provides for a confidentiality exception when necessary “to prevent the wrongful execution or incarceration of another.”
The dilemma is pretty poignantly summed up by these opposing quotes from the Chicago case:
- From the innocent defendant: “Is (a) job more important than an individual’s life?”
- From one of the guilty defendant’s lawyers: “Should I do the right thing by Alton Logan and put my client’s neck in the noose or not? It’s clear where my responsibility lies and my responsibility lies with my client.”
I don’t know the right answer, but I’m interested in trying to harness the wisdom of crowds, so I’m going to try to put up a poll immediately below. I’ve never done a poll before, so bear with me if there are any technical difficulties.