Proposed Ethics Opinion: Defense Lawyers May Assist the State in Responding to Claims of Ineffective Assistance

Criminal defendants, especially those sentenced to long prison terms, sometimes try to attack their convictions and sentences by claiming that their trial lawyers provided ineffective assistance of counsel. The state sometimes seeks trial lawyers' help in answering these claims, and trial attorneys may want to help in order to avoid findings of ineffectiveness. At the same time, trial counsel may have ongoing duties of loyalty and confidentiality that make it inappropriate simply to open their files to the state. The State Bar just issued a proposed ethics opinion -- Proposed 2011 FEO 16 -- concerning how to balance these competing considerations. It's available in full here. The Bar's summary of the opinion is as follows: Proposed opinion rules that a criminal defense lawyer accused of ineffective assistance of counsel by a former client may share confidential client information with prosecutors to help establish a defense to the claim so long as the lawyer reasonably believes a response is necessary and the response is narrowly tailored to respond to the allegations. In other words, the Bar may soon rule that a defense lawyer may assist the state in responding to allegations of ineffective assistance of counsel, perhaps by discussing the case with a prosecutor or by preparing an affidavit summarizing the attorney's view of the relevant facts. The Bar views such assistance as permitted under Rule 1.6(b)(6), which allows a lawyer to reveal otherwise confidential information as necessary to respond to allegations concerning the lawyer's representation of a client. The proposed opinion [...]