ETHICS COMMITTEE OPINION NO. 18-05
THIS OPINION IS ADVISORY ONLY
QUESTION PRESENTED
What duties of confidentiality does a lawyer owe to a former client
who has moved to vacate a criminal judgment based upon alleged
ineffective assistance of counsel?
OPINION
APPLICABLE NORTH DAKOTA RULES OF
PROFESSIONAL CONDUCT
Rule 1. 6 – Confidentiality of Information
FACTS PRESENTED
Lawyer represented client in a felony criminal matter. Client entered
a guilty plea and is serving a prison sentence. Client has filed a
motion to vacate the criminal judgment based upon the allegation
that lawyer provided ineffective assistance of counsel. The prosecutor
has now requested lawyer provide information related to its
representation of client to aid the prosecutor’s defense of the motion
to vacate. 1
DISCUSSION
Rule 1.6(c), N.D.R.Prof.C., provide in relevant part:
A lawyer may reveal information relating to the representation of
a client to the extent the lawyer reasonably believes necessary:
. . .
(4) to establish a claim or defense on behalf of the lawyer in
a controversy between the lawyer and the client, to establish
a defense to a criminal charge or civil claim against the
lawyer based upon conduct in which the client was involved,
or to respond to allegations in any proceeding concerning the
lawyer’s representation of the client;
(Emphasis added).
Comment 10 to Rule 1.6 explains where a legal claim alleges
“misconduct of the lawyer involving representation of the client,
the lawyer may respond to the extent the lawyer reasonably believes
necessary to establish a defense.” The comment further clarifies that
Rule 1.6(c)(4) may apply “in a civil, criminal, disciplinary or other
proceeding and can be based on a wrong allegedly committed by the
lawyer against the client . . . .”
The comment also includes a caution regarding the scope of
disclosures permitted by Rule 1.6(c):
34
THE GAVEL
[P]aragraph (c) permits disclosure only to the extent the lawyer
reasonably believes the disclosure is necessary to accomplish one of
the purposes specified. Where practicable, the lawyer should first
seek to persuade the client to take suitable action to obviate the
need for disclosure. In any case, a disclosure adverse to the client’s
interests should be no greater than the lawyer reasonably believes
necessary to accomplish the purpose. If the disclosure will be made
in connection with a judicial proceeding, the disclosure should
be made in a manner that limits access to the information to the
tribunal or other persons having a need to know it and appropriate
protective orders or other arrangements should be sought by the
lawyer to the fullest extent practicable.
Rule 1.6(c)(4) reflects the long-standing case law that a client waives
attorney-client privilege by raising issues regarding the lawyer’s
conduct, including claims of ineffective assistance of counsel. See, e.g.,
Tasby v. U.S., 504 F.2d 332, 336 (8th Cir. 1974) (“It has long been
the law that a client may waive protection of the [attorney-client]
privilege, either expressly or impliedly. A client has a privilege to keep
his conversations with his attorney confidential, but that privilege is
waived when a client attacks his attorney’s competence in giving legal
advice, puts in issue that advice and ascribes a course of action to his
attorney that raises the specter of ineffectiveness or incompetence.
. . . When a client calls into public question the competence of his
attorney, the privilege is waived.”) (internal citations omitted).
The information a lawyer is permitted to reveal under Rule 1.6(c)(4) in
response to a claim of ineffective assistance of counsel depends upon
the circumstances of the lawyer’s prior representation of the client, as
well as the nature of the proceeding in which the claim of ineffective
assistance of counsel is made. As a result, lawyers will have to make a
fact-by-fact, issue-by-issue, and case-by-case determination of what
information the lawyer reasonably believes is necessary to respond
to allegations regarding the lawyer’s representation of the client. To
the extent the lawyer believes disclosure is warranted, the lawyer
must seek to limit the disclosure to information that is necessary to
respond to the specific allegations about the lawyer’s representation.
If the disclosure is made as part of a pending judicial proceeding, the
lawyer should also seek to make the disclosure in a manner that limits
access to the persons who need to know it, such as through the use of a
protective order or similar arrangement with the parties.
CONCLUSION
A lawyer may reveal information relating to representation of a
client to the extent the lawyer reasonably believes the information
is necessary to respond to allegations in any proceeding concerning
the lawyer’s representation of the client, including an allegation of
ineffective assistance of counsel. However, the lawyer must take steps
to ensure the disclosure is limited to information the lawyer reasonably
believes is necessary to defend the allegations regarding the lawyer’s
representation of the client, and the lawyer should seek to limit access
to the information through a protective order or similar arrangement if
the disclosure is made as part of a judicial proceeding.