What (Can) (Should) (Must) Defense Counsel Withhold from The Prosecution in Ineffective Assistance of Counsel Proceedings?
The Champion, Vol. 35, Page 18, December 2011
10 Pages Posted: 3 Feb 2012 Last revised: 28 Apr 2017
Date Written: February 1, 2012
In July 2010 the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued an opinion that any criminal defense lawyer facing or bringing a claim of ineffective assistance of counsel (IAC), or any prosecutor defending one, should read. Formal Opinion 10-456, 'Disclosure of Information to Prosecutor When Lawyer’s Former Client Brings Ineffective Assistance of Counsel Claim,' answers the question implicit in its title, in short: Unless by express waiver of the former client after informed consent, no more than necessary to respond to the specific allegations, and then only in a formal proceeding that provides for judicial supervision. The opinion explains that voluntary disclosures outside formal proceedings are impermissible, and that the self-defense exception to the obligation to maintain confidentiality has very limited application in the post-conviction context. Critics have questioned the Opinion’s narrow interpretation of the self-defense exception, its claims that prosecutors face little prejudice from inability to receive information from defense counsel before a proceeding, and its assertion that defense lawyers have little justifiable need to make such advance disclosures. This short article outlines the opinion, describes developing jurisprudence concerning defense counsel’s cooperation with the prosecutor, and sets forth suggested practices for counsel facing allegations of IAC.
Keywords: confidentiality, ethics, post-conviction, counsel, defense, prosecution
Suggested Citation: Suggested Citation