Tuesday, October 20, 2009

Charges Of Incompetence, Confidentiality Breach, Rejected

A Louisiana hearing committee found no misconduct and has recommended dismissal of bar disciplinary charges brought against an attorney appointed to defend a death penalty case. The attorney's second chair in the case was granted leave to withdraw and the attorney was sole counsel at trial. After conviction, the defendant was able to secure habeas corpus relief based on a claim of ineffective assistance of counsel: "The court's opinion was not flattering of [the attorney's] representation. There was detailed coverage of the reversal."

 The attorney then provided extensive confidential information to the prosecutors in aid of their motion for new trial. The Office of Disciplinary Counsel brought charges, contending that "[s]olely and exclusively because his feelings had been hurt and his ego bruised, [he] reached out to his former opponent...and purported to disgorge himself of any and all information allegedly given to him by his client."

The committee found that the lapses identified (late engagement of experts and failure to interview an eyewitness) did not amount to ethical violations relating to competent representation. The committee also found  that the attorney had not either presented perjured testimony or a false affidavit in the prosecutor's motion.  The committee further found that the disclosure of confidential information was permissible under the "self defense" exception to the duty of confidentiality and that the client had explicitly waived any claim of privilege. 

As with the last Louisiana post, I suspect that this matter is not finished. The committee simply states its legal conclusions without extended analysis. In particular, there may be an issue of the proper interpretation of the duty of confidentiality, which authorizes a response to defend a claim but not explicitly disgorgement of all protected information.

Perhaps the disclosure of all confidential information can be justified by the waiver, but it reflects an understanding of ethical behavior that differs from mine. Former clients (even those who criticize) still are owed diligence in the protection of confidential information. Anger at the former client may be fully justified, but it is a dangerous emotion. (Mike Frisch)


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