Winning Friends and Influencing People
One of my colleagues responded to this post,
All attorney’s know, that once an ineffective assistance claim is made, the defendant essentially waives attorney-client privilege and the attorney has right to defend their actions and decisions.
This is an incorrect statement of the law.
Everything a lawyer learns in the course of representing a defendant is privileged. Texas Disciplinary Rule of Professional Conduct 1.05(c) describes when a lawyer may reveal privileged information:
(1) When the lawyer has been expressly authorized to do so in order to carry out the representation. (2) When the client consents after consultation. (3) To the client, the client’s representatives, or the members, associates, and employees of the lawyer’s firm, except when otherwise instructed by the client. (4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law. (5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client. (6) To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer’s associates based upon conduct involving the client or the representation of the client. (7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act. (8) To the extent revelation reasonably appears necessary to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used.
When an ineffective-assistance claim is made, the lawyer has not been expressly authorized to reveal privileged information; he has not consented; it is not necessary for the lawyer to reveal privileged information to comply with the law; it is not necessary for the lawyer to reveal privileged information in order to prevent the client from committing a criminal or fraudulent act, nor to rectify the consequences of a criminal or fraudulent act.
What about (5) or (6)?
A postconviction proceeding in which deficient performance is alleged is not a criminal charge, civil claim, or disciplinary complaint.
Nor is it a “controversy between the lawyer and the client”—the controversy is still between the state and the client; the lawyer is just a witness.
What should a lawyer do when a former client files a motion for new trial or a writ alleging that the lawyer provided ineffective assistance?
First, the lawyer should discuss the matter truthfully with the client’s new lawyer. This is permitted by 1.05(c)(3), and makes good sense: no lawyer wants to go chasing meritless claims. I had a client allege once that I had pressured him to plead guilty; if he had asked me before filing I would have sent him another copy (with his signature indicating receipt) of the letter that I had handed him advising him not to plead guilty, and maybe he would have sought relief elsewhere and had more success. If you don’t talk with me before I file, but talk with me after I file, I might decide to abandon some of my claims, to the client’s benefit.
Second, the lawyer should not discuss the matter with the prosecution. Contrary to my colleague’s assertion, alleging ineffective assistance of counsel is not itself waiver (which has to be express). When the prosecutor wants to ask questions about the case, to “go over the allegations,” or for the lawyer to sign an affidavit in response, the lawyer should politely decline, citing Texas Disciplinary Rule 1.05.
Third, the lawyer should await an order from the court. If the court orders the lawyer to respond to the allegations, 1.05(c)(4) allows the lawyer to reveal privileges to the extent necessary to comply with that order. This is not a blanket waiver; the lawyer can’t use it to sling mud at the client.
Fourth, if called by the defense to testify, before answering any questions the lawyer should get express authorization from the client (through the new lawyer) to reveal privileged information on direct, and as required on cross.
Fifth, on cross-examination, the lawyer should keep an eye on the defendant’s lawyer in case there are objections to specific questions (since the waiver is a narrow one). Let the lawyer conducting the hearing make his objections, and if an objection is overruled, ask the court if you must answer. It won’t make you sound like a savvy insider, but explicit orders, like explicit waivers, are your friend.
Finally, the lawyer should, after the hearing is done, go back to keeping his mouth shut about it. That privileged information was revealed once does not necessarily mean that the information is in the wild and the proper subject of further public discussion.
I’ve had recent experience on the receiving end of an allegation of ineffective assistance. The lawyer didn’t bother to try to contact me before filing, but when he eventually called me I was able to provide him with the client’s entire file; when the prosecutor called me about the matter, I declined to discuss it and explained why (he understood); I went to court when subpoenaed; I established on the record that my client wanted me to answer the questions; and I looked for objections from the lawyer before each question on cross-examination (there were none). It wasn’t enough, but my conscience is clear: I did what I could to help the client.
Isn’t that what we’re supposed to be doing?
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