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How Defense Lawyers Break Attorney-Client Privilege to Defend Ineffective Assistance of Counsel Claims

by Steve Horn

A cardinal rule of defense lawyering – or any lawyering, for that matter – is to zealously advocate on behalf of your client. Yet in many states, incentive systems exist for criminal defense attorneys to do the opposite and collaborate directly with prosecutors.

These dynamics are spelled out in a recent article published by Prosecutorial Accountability, a nonprofit that serves as a watchdog for prosecutors and against prosecutorial misconduct. Titled “NV: Prosecutors Should Not Induce Defense Attorneys to Break Ethical Rules,” the article unpacks ways defense lawyers sometimes broker these deals with prosecutors in Nevada.

A main reason they do so, the article says, is to fend off appeals based on claims made by their own clients, post-conviction, that they received ineffective assistance of counsel.

Gideon, Strickland

Under the U.S. Constitution, the Sixth Amendment affords criminal defendants the right to counsel. In the 1963 case Gideon v. Wainwright, the U.S. Supreme Court announced that indigent defendants in a criminal trial have a fundamental right to counsel, which is essential to a fair trial. And in the 1978 U.S. Supreme Court case Strickland v. Washington, the Court clarified that the “Sixth Amendment right to counsel is the right to the effective assistance of counsel.” The Court further ruled in Strickland that the “benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” That, in turn, opened the door for appellate legal challenges for those convicted of criminal charges who believe they received inadequate legal counsel, though there is a high bar for victory under rules created by the Strickland case.

The high bar hurdle comes in the form of a test created in Strickland, which calls for judges to analyze the effectiveness or ineffectiveness of criminal defense counsel on two grounds. Both criteria must be met for a panel of judges to grant an appellant a new trial.

“A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or setting aside of a death sentence requires that the defendant show, first, that counsel’s performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial,” wrote the Court in Strickland. “The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”

Although the standard on appeal is hard to meet, criminal defense attorneys are nevertheless fearful of being accused of providing ineffective assistance of counsel by their former clients. This is where the Prosecutorial Accountability article comes back into play.

Nevada Bar Ruling

The article explains how, oftentimes when facing these appeals, defense attorneys will cooperate with prosecutors – previously their adversaries at the trial court level – in order to save their own professional reputations. That means attorney-client privilege can be compromised in the process, which is a holy grail in the orbit of legal ethics. And that is problematic in the extreme, Prosecutorial Accountability opines.

During the appeals phase of criminal cases, “the defendant can ask a court to review her conviction and/or sentence on the basis that the trial lawyer made problematic decisions or failed to take certain actions that would have been beneficial,” Prosecutorial Accountability explains. “When such a claim arises, there are instances where the trial lawyers actually work with prosecutors to defeat it.”

Worse, the article adds, Nevada actually permits this behavior under the letter of the law of its state bar association.

That became clear when the State Bar of Nevada’s Standing Committee on Ethics and Professional Responsibility published a six-page opinion on July 2, which explicitly instructs that “a criminal defense lawyer facing allegations of ineffective assistance of counsel from a former client may disclose confidential information relating to representation of the client to the extent the lawyer reasonably believes necessary to defend against the allegations.”

The opinion, known in the Nevada Bar as Opinion 55, runs counter to the formerly existing ethics standard on the books in the state.

It mandated that “A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation,” a standard on the books in myriad state bar associations.

Opinion 55 also explicitly states that it disagrees with the standard set forth by the American Bar Association (“ABA”), which came to its own conclusion on the matter via ABA Formal Opinion 10-456, in effect since July 2010.

“The ABA Opinion held that the ABA’s Model Rule of 4 Professional Conduct 1.6 precludes communication between former defense counsel and prosecutors in a postconviction proceeding involving an ineffective assistance claim, unless under direct judicial supervision at an evidentiary hearing,” explained Nevada’s Standing Committee on Ethics and Professional Responsibility in its review of Opinion 10-456.

The Nevada ruling did not offer criminal defense attorneys facing ineffective assistance of counsel claims carte blanche authority to “disclose confidential information relating to representation of the client,” however.

The Nevada Bar wrote that “disclosure is permitted only to the extent reasonably necessary to respond to the allegations and must be narrowly tailored to the issues raised by the former client.”

But Prosecutorial Accountability says the Nevada Bar has conveniently and carefully couched its language there in a fashion, which it views as problematic.

“What is reasonably necessary?” the organization asks rhetorically. “How can they make sure that responses are narrowly tailored?”

Not Only Nevada

Nevada may be the latest battle ground on these issues. But it’s not the only one, which the Nevada Bar pointed to in its July ruling. For example, in January 2013, the District of Columbia Bar Association issued Ethics Opinion 364.

Ethics Opinion 364 “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 … reasonably necessary to respond to the client’s specific allegations about the lawyer’s performance.”

The Nevada Bar also pointed to the North Carolina State Bar Association’s 2011 Formal Ethics Op. 16.

That one “affords the lawyer discretion to determine what information is reasonably necessary to disclose, and there is no requirement that the lawyer exercise that discretion only in a ‘court-supervised setting.’”

Middle Ground?

There is, Prosecutorial Accountability points out, a middle ground that would ensure attorney-client privilege is not compromised yet still enable accused attorneys to adequately defend themselves against ineffective assistance of counsel claims. It would involve a judge serving as the middle man and watchdog.

“There is a sensible alternative that would help alleviate all of the landmines that litter this playing field: judicial supervision of any communications between trial lawyers and prosecutors in post-conviction,” wrote the organization. “It is not only in the client’s interest, the post-conviction lawyer’s interest (by ensuring that the trial lawyer does not over-disclose), and the trial lawyer’s interest (by ensuring again that she does not break the rules), but also the prosecutor’s interest because the rules implicate every lawyer involved.”

Unlike Prosecutorial Accountability, in 2011 Jenna Newmark – then a student at Fordham Law School and now an attorney for Goodwin Procter – wrote in a paper published by the Fordham Law Review that even calling for judges to intervene in matters pertaining to attorney-client privilege and inadequate counsel claims is a bridge too far.

She has taken a hard stance that these materials must be subject to adversarial evidentiary hearings, not just in-person – or to use the legal term, in camera – reviews done under judicial supervision. Those hearings would determine which documents can and cannot be handed over.

“Where a lawyer turns his entire file over to a judge for in camera review, a breach of confidentiality occurs at the moment the lawyer reveals his file to the judge, regardless of whether the prosecution eventually views it,” posited Newmark. “If a judge is to determine what information he needs to decide an ineffectiveness claim, then a lawyer has no way of knowing precisely what information he should disclose to the court for in camera review. Therefore, the lawyer will inevitably disclose more information than is reasonably necessary to defend himself.”

In concluding her paper, Newmark puts the issues at stake for convicted criminal appellants in stark terms.

“[A] policy that would permit a lawyer to do so would further discourage criminal defendants from confiding in their lawyers if they know there exists a practice of revealing confidences in response to ineffectiveness claims,” wrote Newmark. “This erosion of confidentiality and client trust would undermine truth-seeking and the integrity of the adversarial process.” 


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