Can a criminal defense lawyer argue on appeal that his own representation amounted to ineffective assistance of counsel?

Plain-English summary

The request came from the Inquiry Tribunal, and the Committee sought comment from the Public Advocate. The Committee concluded that a lawyer who believes he rendered ineffective assistance of counsel should ordinarily inform the client of the supporting facts and move to withdraw, and should not argue his own ineffectiveness unless ordered by the court to do so.

The opinion gave several reasons. First, there is an apparent conflict between the client's interest and the lawyer's interest in his reputation, which could itself generate a claim that the lawyer did not zealously present the ineffectiveness claim (DR 5-101). Second, a skeptical court might too easily conclude the lawyer is merely seeking a reversal by calling his own conduct inexcusable. Third, presenting such a claim almost always requires asserting facts outside the record, which runs into the rule against a lawyer acting as both counsel and witness (DR 5-101(B) and 5-102(A)).

The opinion recognized narrow exceptions. Where the claim is that government interference, not the lawyer's own performance, prevented effective representation, the ineffectiveness claim does not implicate the attorney-witness rule; it cited the consultation-ban, summation-ban, and testify-first cases as examples, and noted that denial of expert funds or a continuance may qualify if the lawyer can separate the government action from his own performance. Otherwise, outside counsel should be obtained. On whether another lawyer in the same public-defender office may argue the matter, the opinion concluded there are sound reasons to apply imputed disqualification (DR 5-105(D)) even though that rule is not always applied to public-agency lawyers, because lawyers in the same office share personal relationships and an interest in the office's work quality that conflict with the client's interest in showing trial counsel erred.

Currency note

This opinion was issued in 1987 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer argue on appeal that his own trial work was constitutionally ineffective?

A: Ordinarily no. The opinion concluded the lawyer should inform the client and move to withdraw, and should not argue his own ineffectiveness unless the court orders it.

Q: Why shouldn't trial counsel raise his own ineffectiveness?

A: The opinion identified a conflict between the client's interest and the lawyer's reputation, the risk a court dismisses the claim as self-serving, and the lawyer-witness problem, since the claim usually requires facts outside the record.

Q: Is there any situation where counsel can raise it?

A: Yes, narrowly. The opinion said that where government interference, rather than the lawyer's own performance, caused the problem, the claim does not implicate the attorney-witness rule and may be raised; otherwise outside counsel should be retained.

Q: Can a different lawyer in the same public-defender office argue it?

A: The opinion concluded there are sound reasons to apply imputed disqualification and have outside counsel present the claim, because lawyers in the same office share interests that conflict with the client's interest in showing trial counsel erred.

Background and rules framework

The opinion interprets the former Code's conflict provisions, DR 5-101 (the lawyer's personal interests in conflict with the client's), DR 5-102(A) (lawyer as witness), and DR 5-105(D) (imputed disqualification). The modern analogs are Model Rule 1.7 (concurrent conflicts, including personal-interest conflicts) and Model Rule 3.7 (lawyer as witness). The analysis turns on the conflict between counsel's reputational interest and the client's interest, and on the need for record-external facts.

Citations and references

Rules of Professional Conduct:

• DR 5-101(A) and (B); DR 5-102(A); DR 5-105(D) (former Code)
• MR 1.7 (conflicts of interest); MR 3.7 (lawyer as witness)

Cases:

• Geders v. United States, 425 U.S. 80 (1976), ban on attorney-client consultation during recess
• Herring v. New York, 422 U.S. 853 (1975), ban on summation
• Brooks v. Tennessee, 406 U.S. 605 (1972), requirement that defendant testify first
• United States v. Cronic, 104 S. Ct. 2039 (1984), presumed prejudice
• Summit v. Mudd, 639 S.W.2d 225 (Ky. 1984), imputed disqualification in public agencies

Other opinions cited:

• New York State Op. 533; C. Wolfram, Modern Legal Ethics 406, 811 (1986)

See also

• AL Ethics Op. 1991-19: Lawyer-as-Witness and Pre-Trial
• ABA Formal Op. 494: Friendships With Opposing Counsel

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-321.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-321
Issued: July 1987

This opinion was decided under the Code of Professional Responsibility,
which was in effect from 1971 to 1990. Lawyers should consult the current
version of the Rules of Professional Conduct and Comments, SCR 3.130
(available at http://www.kybar.org), before relying on this opinion.

Question:

May an attorney for a defendant in a criminal case ethically argue as a
ground for reversal that he has rendered ineffective assistance of counsel to
the defendant?

Answer:

Qualified no.

References:

DRs 5-101(A), 5-101(B), 5-102(A), 5-105(D).
OPINION

The request originated with the Inquiry Tribunal in an effort to secure guidance
from the Committee. The Committee forwarded the request to the Public Advocate for
comment.
In the Committee's view, an attorney who believes that he or she has rendered
ineffective assistance of counsel to the client should ordinarily inform the client of the facts
supporting this belief and move to withdraw from the case. The attorney should not argue
on behalf of a client that the attorney was ineffective unless ordered by the court to do so.
There are several reasons why an attorney should not argue his or her own
ineffectiveness. First, there is an apparent conflict between the client's interest and the
attorney's interest in his or her reputation, which may give rise to a claim that the
attorney did not zealously pursue the claim - an assertion of ineffectiveness in presenting
the ineffectiveness claim. DR 5-101. Secondly, "a skeptical court may conclude, too
easily, that he is merely attempting to obtain a reversal for his client by contending that
his own conduct was inexcusable, and reject the issue without reflection." D. Webster,
The Public Defender, the Sixth Amendment, and the Code of Professional Responsibility:
The Resolution of a Conflict of Interest, 12 Am.Cr.L.J. 739, 748 (1975) (cited
hereinafter as Webster). Thirdly, the presentation of such a claim almost invariably
involves the assertion of facts outside the record, thus violating the rule against an
attorney acting as both counsel and witness. DR 5-101(B) and 5-102(A).
There may, nevertheless, be a few situations in which it may be proper for an
attorney to raise the ineffectiveness claim. If the claim is that the attorney was unable to

properly present the case because of government interference, the ineffectiveness claim
does not call into question the attorney's performance, nor does it implicate the
attorney-witness rule. Examples of government violation of the right to effective counsel
are found in Geders v. New York, 425 U.S. 80 (1976) (ban on attorney-client consultation
during recess); Herring v. New York, 422 U.S. 853 (1975) (ban on summation); and
Brooks v. Tennessee, 406 U.S. 605 (requirement that defendant testify first).
The denial of funds to employ an expert witness may fall within this exception if
the attorney can separate the effect of such a denial from his own performance. The same
may be true of a denial of a continuance (for example) when the denial makes it so unlikely
that a lawyer could be prepared that prejudice is presumed. U.S. v. Cronic, 104 S.Ct. 2039
(1984). Outside counsel should be obtained, however, if the attorney cannot argue the
effect of the governmental action without discussing his own performance.
The more difficult question is whether another attorney in the same office can
argue the matter. Even though the rule of imputed disqualification (DR 5-105(D)) is not
always applied to attorneys in public agencies (Summit v. Mudd, 639 S.W.2d 225 (Ky.
1984)) there are sound reasons to apply the rule in this instance. Attorneys in the same
office have personal relationships and share an interest in the quality of the legal work of
that office. These are interests which conflict with the client's interest in establishing that
the trial attorney erred. The secondary authorities (Wolfram at 406, Webster at 742,
Ethical Dilemma at 610), cases (Angarano v. United States, 329 A.2d 453, 457 (D.C.
Ct.App. 1974), and ethics opinions (e.g., New York State Op. 533, Law. Man. Prof. Con.
801:6104), concur that the ineffectiveness claim should be presented by outside counsel.
On the other hand, Wolfram notes that "an arguable different case is presented if the
public defenders, although employed by the same agency, operate from physically
separated offices." Wolfram at 406, citing Babb v. Edwards, 412 So.2d 859 (Fla. 1982).
This issue may presumably be addressed by the courts in the context of specific cases, as
the need arises.
The commentators are in agreement that an attorney should not argue his or her
ineffectiveness. C. Wolfram, Modern Legal Ethics, 811 (1986); Webster at 748, 751. "The
interests of society in the proper administration of criminal justice leads this author to
conclude that a compelling basis exists to require that all trial counsel, appointed or
privately retained, decline presenting an appeal which questions the effectiveness of his
trial services." Ineffective Counsel's Last Act - Appeal?: An Ethical Dilemma of
Conflicting Interests, 1979 Ariz.St.L.J. 595, 608 (1979) (cited hereinafter as Ethical
Dilemma).

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the
Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530
(or its predecessor rule). The Rule provides that formal opinions are advisory only.