David M. Siegel, “What (Can) (Should) (Must) Defense Counsel Withhold from The Prosecution in Ineffective Assistance of Counsel Proceedings?,” The Champion, Vol. 18, No. 35, December 2011
Must-read exegesis of ABA Formal Opinion 10-456, for anyone litigating, or on the business end of, an ineffective-assistance claim. Some highlights:
- “The attorney-client privilege and the obligation of confidentiality continue beyond the representation, and while a former client’s IAC claim impliedly waives the privilege with respect to allegations concerning lawyer-client communications, it does not end the obligation to maintain confidentiality.”
- The attorney-client privilege, unlike the obligation of confidentiality, is implicitly waived by filing an IAC claim when the claim concerns what was (or, as often, what was not) communicated between lawyer and client.7 This is not a blanket waiver of the privilege, but only a waiver for information relevant to the claim …. Whether a particular IAC claim makes privileged communications relevant can be highly fact-specific,15 and there is no waiver of the privilege simply by bringing a post-conviction action that does not allege IAC.16 ….
- The Opinion identifies the general rule that “lawyers must maintain confidentiality of information protected by Rule 1.6 for former clients,” and notes that this rule applies “to all information relating to the representation, whatever its source.”23 Not only does Rule 1.6 apply to a broader scope of information than simply privileged communications, but it also applies in a broader range of situations than simply judicial hearings. …
- [T]he Opinion suggests some possible deleterious consequences of allowing advance disclosure to the prosecution. … It is, the Opinion concludes, “highly unlikely that a disclosure in response to a prosecution request, prior to a courtsupervised response by way of testimony or otherwise, will be justifiable.” …
Putting it all together:
To summarize, the filing of an IAC claim by itself waives the attorney-client privilege only for those communications relevant to the allegations, and defense counsel may ethically reveal only otherwise privileged communications that she reasonably believes are necessary to respond to the allegations. These revelations should be made only in a formal proceeding, upon order of a court. Absent the former client’s informed consent, all information obtained in the representation (privileged or not) remains confidential, and can only be disclosed if the lawyer objectively reasonably believes it is necessary to respond to an allegation concerning her representation, and this too should only be done in a formal proceeding, upon order of a court.
A lawyer whose former client brings an IAC claim should take five basic steps to ensure that she responds ethically.
- Provide the file to successor counsel or the former client.
- Cooperate with successor counsel.
- Restrict informal contacts with the prosecution.
- Review the IAC allegations.
- In a supervised proceeding, confirm that prospective disclosures are necessary and, if privileged, that the privilege has been waived.
A defense lawyer whose former client brings a post-conviction action alleging IAC is subject to ethical obligations that restrict disclosure of confidential information. Although it may be personally challenging for the lawyer, the post-conviction action neither ends nor excuses obligations to the former client. These obligations limit the disclosures that can be made to the prosecutor, and the circumstances in which they can be made. Continued adherence to one’s ethical obligations does not prevent disclosures that are objectively, reasonably necessary to respond, but this determination should be made in a formal proceeding.
Note: Milwaukee Appellate’s own Ellen Henak is cited as authority for the proposition that, “the lawyer’s best course of action is to avoid conversations with the prosecutor, with the limited exception of procedural discussions involving such matters as scheduling.” (See footnote 78.)