Many criminal defendants who face significant sentences and are unsuccessful on appeal petition for collateral habeas corpus relief. One common ground for postconviction relief is that defense counsel was unconstitutionally ineffective before, during, or after trial. This presents an ethical dilemma for those defense attorneys who have withdrawn from representation and are accused of being ineffective. Should an accused lawyer disclose confidential client information to the prosecution in self- defense against these claims? Or should the lawyer, even in the face of attacks on his work, help his former client in substantiating ineffectiveness claims? Lawyers and courts must balance the competing interests that underlie the relevant Model Rules of Professional Conduct (or corresponding ethical rules in each jurisdiction) to determine which course of action is appropriate. Some courts permit (or even require) trial counsel to disclose confidential client information in defense against ineffective assistance of counsel claims. Such disclosures ma y be justified because, under the Model Rules of Professional Conduct, a lawyer's duty to keep client information confidential may be limited by an ability to defend himself against charges of wrongful conduct. However, some commentators argue that, notwithstanding attacks on his work, a lawyer accused of ineffectiveness should not exercise his right to self-defense and should instead provide information to his former client to help substantiate ineffectiveness claims. This Note examines both theories of a lawyer's role in the postconviction context and concludes that trial counsel should not invoke the confidentiality duty's self-defense exception to respond to ineffectiveness claims. The interests that underlie the confidentiality duty are paramount and should not be undermined in response to claims that pose little threat to a lawyer's career. Additionally, this Note argues that a lawyer has a limited duty to turn over files and documents relating to representation to his former client.
Jenna C. Newmark,
The Lawyer's “Prisoner's Dilemma”: Duty and Self-Defense in Postconviction Ineffectiveness Claims,
79 Fordham L. Rev. 699
Available at: http://ir.lawnet.fordham.edu/flr/vol79/iss2/8