ABA: Defense can’t provide information

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By Steve Lash
Dolan Newswire

Baltimore – Despite a desire to protect their reputations, defense attorneys must say no when a prosecutor asks them for confidential information to rebut a claim of ineffective assistance of counsel, the American Bar Association has stated in an ethics opinion.

That information remains covered by the attorney-client privilege and can be released only with the client’s consent or under a court order. In addition, the order must be based on a judicial finding that the prosecution’s need for the information trumped the lawyer’s duty to maintain confidentiality, the ABA stated in the Sept. 17 opinion.

Any potential damage to the attorney’s reputation from an ineffective assistance claim does not justify the voluntary disclosure of confidential information to a prosecutor, the association added.

Abe Dash, who teaches legal ethics, said he understands how concern for their good name might inspire some defense lawyers to cooperate with a prosecutor in that situation.

“It does hurt your reputation if a higher court says that your representation was so incompetent it violated the Sixth Amendment,” said Dash, a professor at the University of Maryland School of Law. “The reputation of a lawyer is how he makes his money.”

But Dash added he agrees with the bar association’s conclusion that the attorney-client privilege comes first.

“What the ABA is saying does make sense,” he said. “The lawyer should never reveal anything voluntarily. You only reveal if you’re ordered to by a court.”

The ABA said its Standing Committee on Ethics and Professional Responsibility issued the opinion following instances in which defense lawyers have released privileged information at the mere request of a prosecutor to try to prove they competently represented a defendant who was nevertheless convicted.

In its opinion, the committee cited a lawyer in a Missouri case who voluntarily submitted a 117-page affidavit “extensively refuting” a convicted former client’s appellate argument that the attorney was incompetent.

“Although it is highly unusual for a trial lawyer accused of providing ineffective representation to assist the prosecution in advance of testifying or otherwise submitting evidence in a judicial proceeding, sometimes trial lawyers have done so and commentators have expressed concern about the practice,” the opinion stated.