chevron-down Created with Sketch Beta.
December 27, 2018 Top Story

Ethics Opinion Approves Sharing Confidential Info with State

Narrowly tailored disclosures permissible in defense of ineffective counsel claims

By Stephen Carr

Criminal defense attorneys accused by their former clients of being ineffective face a difficult decision—share information with the state that could harm their former client on retrial or remain silent and risk their own reputations.

A Nevada standing committee on ethics determined attorneys may provide sensitive information prior to judicial proceedings

A Nevada standing committee on ethics determined attorneys may provide sensitive information prior to judicial proceedings

Pexels | Pixabay

A recent Nevada ethics opinion gives attorneys permission to share with prosecutors information necessary to respond to such allegations before being required to do so by a court, provided the disclosure is narrowly tailored to the issues the former client raised in the claim.

The Self-Defense Exception

Under the U.S. Supreme Court’s decision in Strickland v. Washington, a convicted defendant is eligible for a new trial if their attorney was ineffective in representing them and the attorney’s ineffectiveness harmed the defendant—meaning it likely affected the result of the trial. The standard is quite high and often requires delving into confidential conversations between the attorney and the client to evaluate the reasonableness of the attorney’s representation.

In recent years, controversy has arisen as to when criminal defense attorneys should disclose such sensitive information—whether defense attorneys should await a judicial proceeding or provide the information to prosecutors investigating ineffective assistance claims early on. The issue came to the fore in a recent opinion of the Standing Committee on Ethics and Professional Responsibility of the State Bar of Nevada, which determined that attorneys should have a green light to give such information to prosecutors in advance of a judicial proceeding, to the extent the lawyer reasonably believes necessary to defend against the allegations.

The opinion caused the federal public defenders office to file a substantial objection. And the Nevada Supreme Court has since vacated the standing committee’s opinion. The ultimate result remains uncertain.

The Nevada opinion contradicts an earlier ethics opinion by the ABA Standing Committee on Ethics and Professional Responsibility, which took a more cautious approach to disclosures. The opinions relied on Model Rule of Professional Responsibility 1.6 and the Nevada equivalent, both of which prohibit attorneys from revealing “information relating to the representation of the client unless the client gives informed consent.” But Rule 1.6 has several exceptions, including an exception for lawyers to “respond to allegations in any proceeding concerning the lawyer’s representation of the client,” the so-called “self-defense” exception.

The Nevada opinion gives greater leeway to defense attorneys to determine for themselves when disclosure is necessary, while the ABA Standing Committee’s opinion struck a more careful stance, encouraging lawyers to await a judicial ruling compelling the attorney’s testimony. “An important difference in the two opinions comes down to a matter of timing and oversight. Should attorneys reveal information when the allegation against them first surfaces, or should they wait for judicial oversight?” explains Erin R. Schrantz, Chicago, IL, cochair of the ABA Section of Litigation’s Criminal Litigation Committee.

Clogging the Courts?

For the Nevada ethics board, early disclosure—when an investigation begins—ensures that prosecutors will have access to accurate information that will improve the “truth-finding function of the judicial process.” The board noted that petitions to overturn criminal convictions “clog our courts” and hoped that letting attorneys communicate with prosecutors soon after a petition is filed would help the judicial system deal with these petitions more efficiently.

The Nevada opinion also concluded that attorneys should have an opportunity to respond to allegations against them as a matter of fairness to the attorney. The state has an interest as well in upholding the integrity of its convictions, according to the Nevada board.

Despite approving of early responses in general, the board cautioned that disclosures should be “narrowly tailored” to the “extent reasonably necessary to respond to the allegations.” Experts express the need for caution as well. “Attorneys considering whether to disclose confidential information should consider that if the conviction is reversed, that information might be used against the client,” warns Schrantz.

Protecting Clients or Convictions

Other states and the ABA Standing Committee have decided that disclosure should be more limited and raised concerns about whether the self-defense exception is truly applicable. In general, the self-defense exception applies to conflicts between the client and the attorney. But in a Strickland claim the attorney is not actually a party to the case. “The ABA Standing Committee’s opinion recognizes that the lawyer does not really have an interest in the former client’s Strickland claim while the former client has a strong interest in protecting confidential information from being used in a possible retrial if the defendant is successful in demonstrating ineffective assistance,” explains Schrantz.

In addition, the ABA Standing Committee’s formal opinion worried that disclosing information in response to a prosecutor could lead to accidental disclosures of information that should be protected. “The ABA Standing Committee’s opinion is making a practical case that attorneys should be on their guard to make sure they do not unnecessarily disclose protected information. Judicial oversight of the proceedings provides added protection for attorneys and their clients,” states John M. Barkett, Miami, FL, cochair of the Section’s Ethics & Professionalism Committee.

“Even though there is an impressive amount of authority supporting an attorney’s right to disclose early on in the process, the safest option for criminal defense attorneys is to wait for a judicial investigation to begin to ensure that only information actually necessary to defend against the allegations actually made is disclosed. The ABA Standing Committee’s opinion provides a safer way for attorneys to proceed; it still gives them the opportunity to address inaccurate allegations if needed after a judicial proceeding arises,” concludes Barkett.


Stephen Carr is an associate editor for Litigation News.

Hashtags: #appellatetwitter #ethics #confidential

Related Resources

  • Restatement (Third) of the Law Governing Lawyer § 64.
  • Formal Op. 10-456, ABA Comm’n on Ethics & Prof’l Responsibility (2010).
  • Formal Op. 55, Nev. Comm’n on Ethics & Prof’l Responsibility (2018).
  • Strickland v. Washington, 466 U.S. 668 (1984).
  • United States v. Ball, No. 06-20465, 2017 U.S. Dist. Lexis 120459 (E.D. Mich. Aug. 1, 2017).

Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).