When lawyers join the prosecutors
If you practice criminal defense law you are going to be the recipient of ineffective assistance claims. You may have done the best job possible, but your client is still not happy. You can't change the facts, and some are not good at accepting reality. If the client is doing time they will have a lot of time on their hands. They want out, and if they think attacking the lawyer will accomplish that, then on they go. The truth is that ineffective assistance claims are rarely successful; but that doesn't keep clients from making them.
All too often the receipt of an ineffective assistance of counsel claim turns an advocate into an adversary. I understand the emotions that can arise; you put your heart and soul into a case, and how dare they say you were ineffective. You might want to lash out - which unfortunately some attorneys do. Which brings it to the reason for this post.
One of the first things you learn in law school is that everything a client tells you must be held in confidence. You can't disclose it no matter what - and that is the way it should be. There are a few exceptions, and one of those is when it is necessary to defend yourself against a claim against you. If a client says you never discussed probation with him, and he actually told you he didn't want probation because he knew he couldn't make it, you don't have to keep that to yourself. The question however is how much you can disclose, and when you can disclose it.
The ABA recently issued an opinion on this issue. One thing the opinion says is that a lawyer can only disclose information in a judicial proceeding - in other words, if he is testifying in court. The other is that you can only disclose what is relevant and necessary to answer the claim.
I have issues with an attorney who all the sudden becomes best friends with a prosecutor when a claim is made. Some volunteer to turn over their file - which is clearly improper. Others tell the prosecutor everything about the case - including what a worthless human being they think the defendant is (remember David Martin - Cameron Todd Willingham's trial attorney). This opinion is a good reminder that you remain an advocate for a client, even if they complain about your representation.
That said, there are some issues with the opinion - mainly because the authors don't seem to have a clue about how the writ system works. For starters, live hearings are almost never conducted at least in Texas. Instead, hearings are usually conducted by affidavits. In contested cases a judge may designate the issues they want evidence on, and direct counsel to file an affidavit. Is that consider a judicial proceeding? What about the prosecutor attaching an affidavit to their response - before the judge has ordered a response? In my opinion, I don't think that is covered.
It would have nice for the ABA to obtain input from lawyers who actually do post-conviction work before delivering an opinion. My guess is they did what they usually do, which is turn to law professors; who often have no clue about how things actually work. However, I do commend them for addressing the issue. If nothing else it reminds us that the attorney client privilege doesn't disappear just because a client says bad things about you.
All criminal defense lawyers need to read this opinion, and re-read before responding to an ineffective assistance claim. It's a good reminder that you are always an advocate for your client - even after the representation ends. The best advice you can give anyone is to not do anything in haste. Allow yourself to cool off, and recognize it for what it is - an attempt by a desperate person to gain freedom.
And by the way - if you messed up admit it, and move on. You owe the client nothing less.
