When a former client files a habeas petition claiming ineffective assistance, can the defense lawyer give confidential information to the government before any hearing?

Plain-English summary

A criminal defense lawyer is contacted by a government lawyer handling a former client's habeas petition that alleges the defense lawyer was constitutionally ineffective. Citing Virginia Code § 8.01-654(B)(6), under which a habeas petitioner alleging ineffective assistance waives the attorney-client privilege "to the extent necessary to permit a full and fair hearing," the government asks the defense lawyer to provide information about the representation before any evidentiary hearing and without a court order. The former client has not consented. The question is whether Rule 1.6 permits the disclosure.

The committee starts from Rule 1.6(a)'s general duty of confidentiality, which continues after the representation ends and is broader than the attorney-client privilege, so the statutory privilege waiver is not dispositive of the lawyer's ethical duty. Without client consent, the lawyer may disclose only if an exception applies, here the self-defense exception in Rule 1.6(b)(2), which allows disclosure to respond to allegations in any proceeding concerning the lawyer's representation. While an ineffective-assistance petition "concerns" the representation, the lawyer may reveal information only to the extent reasonably necessary.

The committee concludes that Rule 1.6(b)(2) generally does not authorize disclosure at the time the petition is filed, before the court has determined whether the petition is legally and procedurally sufficient, because many habeas petitions fail on legal grounds and in those cases the lawyer never needs to reveal anything. That a pre-litigation disclosure might dispose of the claim faster does not make disclosure reasonably necessary. Absent additional justifying facts, the lawyer can reach the same result by disclosing under judicial supervision after a determination of what information should be revealed, avoiding over-disclosure (citing LEO 1433 and Comment [10] to Rule 1.6). The committee notes that a lawyer does not violate the rule by refusing to reveal information on request.

In practice

Under the Virginia rule, when a former client files a habeas petition alleging ineffective assistance, the defense lawyer generally may not disclose client confidences to the government before the court rules on the petition's legal and procedural sufficiency. The opinion holds that the statutory privilege waiver in Va. Code § 8.01-654(B)(6) does not control the ethical duty, which is broader than privilege, and that Rule 1.6(b)(2) permits disclosure only to the extent reasonably necessary. The opinion holds that disclosure at the filing stage is generally not reasonably necessary, because many petitions fail on legal grounds; the lawyer can instead disclose under judicial supervision after the court determines what should be revealed, and does not violate the rule by declining to disclose on the government's request.

Common questions

Q: Does the former client's ineffective-assistance claim let me hand over confidences to the government?

A: Not at the filing stage, generally. The opinion concludes that Rule 1.6(b)(2) permits disclosure only to the extent reasonably necessary, and that disclosure is generally not reasonably necessary before the court rules on the petition's sufficiency.

Q: The statute says the client waived the privilege. Doesn't that settle it?

A: No. The opinion concludes that Va. Code § 8.01-654(B)(6) waives the privilege only to the extent necessary for a full and fair hearing, and that the ethical duty of confidentiality under Rule 1.6 is broader than the privilege, so the statute alone does not authorize the disclosure.

Q: How can I respond to the ineffective-assistance claim without violating confidentiality?

A: The opinion concludes the lawyer can reach the same outcome by disclosing under judicial supervision after the court determines what information should be revealed, which avoids revealing more than Rule 1.6(b)(2) permits (LEO 1433; Comment [10] to Rule 1.6).

Q: Can I be disciplined for refusing the government's request?

A: No. The opinion concludes that Rule 1.6(b) permits but does not require disclosure, so a lawyer does not violate the rule by refusing to reveal information on request under these circumstances.

Background and rules framework

The opinion interprets Rule 1.6 of the Virginia Rules of Professional Conduct (Model Rule 1.6), specifically the general confidentiality duty in 1.6(a), which continues after the representation ends, and the self-defense exception in 1.6(b)(2), which permits disclosure to respond to allegations concerning the lawyer's representation. It reads the rule against Virginia Code § 8.01-654(B)(6) (statutory privilege waiver in ineffective-assistance habeas claims), emphasizing that the ethical duty is broader than the privilege and that disclosure is limited to what is reasonably necessary, consistent with LEO 1433 and Comment [10] to Rule 1.6.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Va. Rule 1.6(a), (b)(2) (confidentiality; self-defense exception)

Statutes:

• Va. Code § 8.01-654(B)(6) (privilege waiver in ineffective-assistance habeas claims)

Other opinions cited:

• Va. LEO 1433: seek a judicial ruling on the propriety and extent of disclosure before revealing confidences to rebut a former client's accusation

See also

• VSB Ethics Op. 1862: Prosecutor's Timely Disclosure and Plea Negotiations
• VSB Ethics Op. 1872: Virtual Law Office and Executive Office Suites

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1859.pdf

Original opinion text

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

LEGAL ETHICS OPINION 1859

MAY A CRIMINAL DEFENSE LAWYER DISCLOSE
INFORMATION TO A GOVERNMENT LAWYER
AFTER A FORMER CLIENT MAKES A CLAIM OF
INEFFECTIVE ASSISTANCE OF COUNSEL?

In this hypothetical, a criminal defense lawyer has been contacted by a government lawyer who is responsible for handling a petition for habeas corpus filed by the defense lawyer’s former client. The petition alleges that the defense lawyer provided ineffective assistance of counsel to the former client. Citing Virginia Code §8.01-654(B)(6)1, the government lawyer requests that the defense lawyer provide information concerning his representation of the former client to the government in order for the government to prepare a response to the petition. The defense lawyer asks whether he can reveal this information in response to the government’s request prior to any evidentiary hearing on the former client’s petition and without a court order requiring disclosure of the information. The former client has not given informed consent to the disclosure of this information. The defense lawyer indicates that, in his experience, habeas petitions are overwhelmingly dismissed on legal or procedural grounds; in those cases, the court never reaches the substantive issues presented. QUESTION PRESENTED May a criminal defense lawyer whose former client claims that the lawyer provided constitutionally ineffective assistance of counsel disclose confidential information to government lawyers prior to any hearing on the defendant’s claim, without a court order requiring the disclosure or the informed consent of the former client, in order to help to establish that the defense lawyer’s representation was competent? APPLICABLE RULES AND OPINIONS The applicable Rule of Professional Conduct is Rule 1.6 (a) and (b)(2)2. ANALYSIS Pursuant to Rule 1.6(a), a lawyer has a general duty to maintain the confidentiality of information learned during the representation of a client, even after the representation has concluded.3 That duty is subject to the limited exceptions specified in Rule 1.6(b) and (c), 1

Virginia Code §8.01-654(B)(6) provides that a petitioner who alleges ineffective assistance of counsel as a ground for habeas relief is deemed to waive the attorney-client privilege with respect to communications between counsel and himself “to the extent necessary to permit a full and fair hearing” of the allegation. This statute alone is not dispositive of the lawyer’s ethical duties, however, because the duty of confidentiality is broader than the attorneyclient privilege. See Rule 1.6 Comments [3] and [12].

2

Rule 1.6 Confidentiality of Information
(a) A lawyer shall not reveal information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c). (b) To the extent a lawyer reasonably believes necessary, the lawyer may reveal:

(2) such information 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;

3

Comment [18], Rule 1.6: “The duty of confidentiality continues after the client-lawyer relationship has terminated.”

LEO 1859
Page 2
including the exception that is relevant to this question, found in Rule 1.6(b)(2). Thus, a lawyer may not reveal confidential information without either obtaining client consent or determining that one of the exceptions to the rule applies. In this hypothetical, the former client has not given consent to the lawyer’s release of this confidential information. Thus, the lawyer can disclose the requested information to the government only if Rule 1.6(b)(2) applies to authorize the disclosure. The Committee opines that Rule 1.6(b)(2) generally does not authorize the disclosure of client confidences under these circumstances. The rule allows the disclosure of confidential information in order to “respond to allegations in any proceeding concerning the lawyer’s representation of the client.” A habeas petition that alleges ineffective assistance of counsel undoubtedly “concerns” the lawyer’s representation of the former client, since it is a claim that the former client’s conviction should be set aside because of the lawyer’s performance during the representation. However, the lawyer may reveal information only to the extent reasonably necessary to defend against these claims. It is unlikely that it is reasonably necessary for the lawyer to disclose confidential information at the time the petition is filed, when the court has not made a determination of whether the petition is legally and procedurally sufficient. Many habeas petitions fail on legal grounds, and in those cases there is no need for the lawyer to ever reveal information about his representation. Although a pre-litigation disclosure of all relevant information may make it more likely that the claim of ineffective assistance will be disposed of quickly, that fact alone does not make it necessary that the lawyer reveal the information. In the absence of additional facts and circumstances justifying an earlier release of the information, the lawyer can reach the same outcome by disclosing the information under judicial supervision in a formal proceeding, after a full determination of what information should be revealed, and without the danger of revealing more information than would be permitted by Rule 1.6(b)(2).4 Finally, Rule 1.6(b) provides that a lawyer may reveal information as permitted by the Rule; but a lawyer does not violate the Rule under these circumstances by refusing to reveal information upon request. This opinion is advisory only and is not binding on any court or tribunal. June 6, 2012

4

See LEO 1433. Even when disclosure is necessary to rebut a former client’s accusation that the lawyer committed criminal conduct for which the former client has now been indicted, the lawyer is advised to seek a judicial ruling on the propriety and extent of the disclosure. See also Comment [10] to Rule 1.6, which cautions that, “in any event, disclosure should be no greater than the lawyer reasonably believes is necessary to vindicate innocence, the disclosure should be made in a manner which 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.”