Sometimes It’s Hard, But Remember What Side You’re On.

January 24, 2017
By Hanging Out with Carl Gunn


  • Lawyers have a broad duty of confidentiality toward their clients that goes beyond the attorney-client privilege and includes all information relating to the representation, no matter what the source is.
  • There is a “self-defense” exception which allows disclosure when necessary to defend against allegations by the client about the lawyer’s representation, but disclosure of information under that exception must be “no greater than necessary.”
  • An ABA ethics opinion concludes that this means a lawyer generally should not disclose information voluntarily to a prosecutor defending an ineffective assistance of counsel claim but should disclose information only when and to the extent ordered by a court.



Last fall, the Seattle Federal Public Defender circulated an ABA ethics opinion that addresses one of the uncomfortable positions a defense attorney can find himself or herself in with prior clients – when the client files a habeas petition claiming ineffective assistance of counsel.  The first discomfort most of us will feel is feeling bad the client feels like you did a poor job.  There can also be a second source of discomfort, however – if and when the prosecutor calls you and wants you to provide information to use against the client’s ineffective assistance of counsel claim.  Where you’re usually fighting with your client against the prosecutor, now you’re being asked to fight with the prosecutor against your client.

While there can be many different reactions to being in this uncomfortable position, one natural one is to want to defend yourself, view the prosecutor as someone helping you do that, and so do what you can to help the prosecutor defeat the client’s ineffective assistance claim.  The ethics opinion the Seattle Federal Public Defender circulated last fall gives a number of reasons why you shouldn’t give in to this natural instinct and that giving in to it is likely a violation of the rules of ethics.  The proper time and place to defend yourself – or, to try to put it in a more neutral perspective, explain your actions for the court as finder of fact to objectively evaluate – is in a formal court proceeding.

The ethics opinion is attached here, but I’ll summarize it a little bit in this post.  It makes a couple of key points.  First, it reminds us that our professional obligations impose a rather sweeping duty of keeping information about a client confidential, which goes beyond the narrower evidentiary attorney-client privilege and applies to “all information relating to the representation, whatever its source.”  Model Rule of Professional Conduct 1.6, cmt. 3.  While there is a “self-defense exception” that allows the disclosure of confidential information to, inter alia, “respond to allegations in any proceeding concerning the lawyer’s representation of the client,” Model Rule of Professional Conduct 1.6(b)(5), that exception is limited and should be invoked with care.  A comment to Rule 1.6 cautions that disclosure of confidential information for this purpose should be “no greater than . . . necessary,” that the lawyer should first try to persuade the client to take suitable action to obviate the need for disclosure, and that the disclosure “should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.”  Model Rule of Professional Conduct 1.6, cmt. 16.

The ethics opinion also describes some of the problems disclosure in informal, ex parte discussions with the prosecutor may create.  One is that the client is denied the opportunity to object to disclosures he may think are inappropriate.  Another is that the client is denied the opportunity to withdraw or modify his claim in a way that might obviate the need for disclosure.  A third is that a lawyer thinking in terms of defending himself or herself may err on the side of disclosure rather than err on the side of protecting the client’s confidentiality, even if he or she doesn’t consciously intend to do so.  The potential damage done is not just to the client’s habeas claims, moreover, because the information could be used by the prosecutor in a retrial if the client does prevail in his habeas claim.

The ethics opinion then concludes:

Against this background, 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.  It will be rare to confront circumstances where trial counsel can reasonably believe that such prior, ex parte disclosure, is necessary to respond to the allegations against the lawyer.  A lawyer may be concerned that without an appropriate factual presentation to the government as it prepares for trial, the presentation to the court may be inadequate and result in a finding in the defendant’s favor.  Such a finding may impair the lawyer’s reputation or have other adverse, collateral consequences for the lawyer.  This concern can almost always be addressed by disclosing relevant client information in a setting subject to judicial supervision. . . . [M]any ineffective assistance of counsel claims are dismissed on legal grounds well before the trial lawyer would be called to testify, in which case the lawyer’s self-defense interests are served without the need ever to disclose protected information.  (Footnote omitted.)  If the lawyer’s evidence is required, the lawyer can provide evidence fully, subject to judicial determinations of relevance and privilege that provide a check on the lawyer disclosing more than is necessary to resolve the defendant’s claim.

The way in which judicial supervision of the disclosure can protect the client’s interests is illustrated by the Ninth Circuit’s opinion in Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003).  In that case, the Ninth Circuit approved a district court protective order designed to guard against some of the concerns expressed above.  The protective order provided that (1) the information disclosed “shall be deemed confidential”; (2) that it would be used only by the prosecutors litigating the habeas petition in that case and only for that purpose; and (3) it would not be disclosed to any other persons or agencies, including other law enforcement or prosecutorial personnel or agencies.  See id. at 717 n.1.  The Bittaker court also noted with apparent approval a similar order in a California Supreme Court case; that order provided that the respondent in the habeas action there (1) had to limit use of the privileged information to “rebuttal of petitioner’s habeas corpus claims”; (2) could not use the information against the petitioner “in any manner during any future proceeding, including any possible retrial”; and (3) had to “treat the documents, and the information contained therein, as confidential and not disseminate them or disclose their contents other than in the course of its litigation of this habeas corpus proceeding.”  Id. at 724 n. 8 (quoting In re Gallego, No. S042737 (Cal. Aug. 14, 1996)).

The Bittaker opinion’s reasoning underlying its approval of these protective orders also highlights the importance of judicial supervision of the disclosure of confidential information.  One way the court recognized a client might protect confidentiality – consistent with the suggestion in the comment to Model Rule 1.6 that the lawyer might persuade the client to take action to obviate the need for disclosure – is that a habeas petitioner could “choos[e] to abandon the claim that gives rise to the waiver.”   Bittaker, 331 F.3d at 721.  Assuming the client can’t or won’t do that, the court recognized courts can “closely tailor[ ] the scope of the waiver to the needs of the opposing party.”  Id. at 720.  Finally, the court approved of the provision in the protective order limiting use of the information to just the habeas proceedings, noting that “[e]xtending the waiver to cover Bittaker’s retrial would immediately and perversely skew the second trial in the prosecution’s favor.”  Id. at 722.

Bittaker also illustrates how a defense attorney worried about how well the prosecutor will “defend” him (but query whether that’s the right way for the defense attorney to think of the prosecutor) is able to rely on the rule of law and judicial supervision to control the process.  The protective order in Bittaker was issued during a pretrial discovery process, which is provided for in the rules governing habeas corpus proceedings.  See Rule 6, Rules Governing Section 2255 Proceedings for the United States District Courts.  So prosecutors do have a way of getting information pretrial if they need to have it pretrial.

Keep these considerations in mind if you get in that uncomfortable place of being the subject of an ineffective assistance of counsel claim.  Maybe you didn’t make a mistake, maybe you did, but think of yourself as a witness subject to the judicial process, with information to be disclosed only to the extent a court says it should be disclosed, after hearing the defendant’s position as well as the government’s.