January 12, 2013
Confidentiality Issues When Former Client Claims Ineffective Assistance
A recently issued opinion of the District of Columbia Bar's Legal Ethics Committee deals with the issue of confidentiality when a former client claims ineffective assistance of counsel:
When a former client challenges a criminal conviction or sentence on the grounds of ineffective assistance of counsel (“IAC”), D.C. Rule 1.6(e)(3) permits the lawyer to disclose client confidences and secrets only insofar as reasonably necessary to respond to the client’s specific allegations about the lawyer’s representation. Where appropriate, the lawyer should take steps, such as seeking a judicial protective order or entering into an agreement with the prosecutor, to limit the use of such disclosures to the IAC proceeding.
The committee's conclusion:
D.C. Rule 1.6(e)(3) permits a defense lawyer whose conduct has been placed in issue by a former client’s ineffective assistance of counsel claim to make, without judicial approval or supervision, such disclosures of information protected by Rule 1.6 as are reasonably necessary to respond to the client’s specific allegations about the lawyer’s performance. Even so, a lawyer should reflect before making disclosures of protected information to prosecutors, courts, or others. A lawyer’s confidentiality obligations to her former client are broader than the attorney-client privilege. Although the former client’s claim likely waives the evidentiary privilege, that alone does not eliminate the broader confidentiality obligation owed under Rule 1.6. Nor does the limited “self-defense” exception to confidentiality in Rule 1.6(e)(3) open the door to unlimited disclosures to prosecutors, courts or others of protected information. The rule allows a lawyer to disclose protected information only to the extent “reasonably necessary” to respond to “specific allegations” by the former client. Reasonableness is a fact-bound issue about which others may later disagree. Lawyers who are uncertain about the permissibility of disclosing protected information in response to an IAC claim should consider seeking independent advice or judicial approval of the disclosure.
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