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Opinion #223. Ethical Obligations of Former Counsel in Post-Conviction Review Cases
Issued by the Professional Ethics Commission
Date Issued: September 10, 2020
Introduction
The purpose of this opinion is to provide guidance where former counsel has become aware that a former client filed a post-conviction review ("PCR") proceeding alleging ineffective assistance of counsel ("IAC") in criminal or child protective proceedings, either through an informal inquiry by the prosecutor defending the case requesting information, by receipt of the PCR filing itself, or otherwise.
Primary Questions:
- What are the former counsel’s continuing duties to a former client where a post-conviction review (PCR) proceeding has been filed alleging ineffective assistance of counsel (IAC) by the former attorney in her representation?
- What are former counsel’s duties regarding requests for information or formal discovery in the PCR proceeding, whether formally through issuance of a subpoena by a prosecutor defending the action or requesting the file, or testimony by deposition.
Short Answers:
- Legal representation requires fiduciary duties of loyalty and confidentiality extending beyond the termination of the representation. Although a claim of IAC may waive attorney-client privilege, the waiver may be limited to the scope of the IAC claim. The best practice is for counsel to avoid making any disclosures beyond releasing the file to current counsel (consistent with the Commission’s Enduring Ethics Opinion #187).
- The Commission endorses seeking court intervention for any discovery from former counsel beyond transmittal of the former client’s file to the client or current counsel. Court intervention achieves the necessary disclosures while protecting client confidences that are not directly implicated by the IAC claims. Lawyers who are uncertain about the nature and extent of disclosures should consider obtaining a ruling from the court which necessarily will involve the former client’s current counsel. This recommendation provides counsel with a "safe harbor" to avoid one’s conduct being questioned later.
Guidance Summary:
Circumspect disclosure within the orbit of formal legal process is the most prudent path former counsel can follow in meeting her obligations to the former client and the courts while balancing legitimate concerns involving self-interest in one’s professional reputation, potential exposure to administrative disciplinary proceedings, and civil liability. Although the Maine Rules of Professional Conduct contains a "self-defense" exception to client confidentiality, which is permissive, not mandatory, the use of some form of judicial oversight will ensure that the former client can assess and, if necessary, object on privilege and relevance grounds those matters deemed not reasonably necessary to the issues actually presented in the IAC claim.
The Commission discourages informal communications with either current counsel or the prosecutor defending the PCR action. Obligations for information reasonably necessary to the IAC claim can be achieved through the use of subpoena for former counsel’s file, a motion for a protective order to limit disclosure to reasonably necessary matters based on the particular IAC allegations, and/or a deposition of former counsel. Pre-hearing disclosures within the ambit of formal process assist in meeting former counsel’s obligation "to provide the client with reasonable notice of the intended disclosures" while allowing current counsel the opportunity to limit the extent of confidential disclosures.
Applicable Rules:
M.R. Prof. Conduct 1.6 - Confidentiality of Information
M.R. Prof. Conduct 1.6(a):
A lawyer shall not reveal a confidence or secret of a client unless, (i) the client gives informed consent; (ii) the lawyer reasonably believes that disclosure is authorized in order to carry out the representation; or (iii) the disclosure is permitted by paragraph b.
M.R. Prof. Conduct 1.6(b)(5):
A lawyer may reveal a confidence or secret of a client to the extent the lawyer reasonably believes necessary:
(5) 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.
M.R. Prof. Conduct 1.6(c):
Before revealing information under paragraph (b)(5) or (6) in controversies in which the client is not a complainant or a party, the lawyer must, if feasible make a good faith effort to provide the client with reasonable notice of the intended disclosures.
M.R. Prof. Conduct 1.9 Duties to Former Clients
M.R. Prof. Conduct 1.9(c):
A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use confidences or secrets of a former client to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal confidences or secrets of a former client except as these Rules would permit or require with respect to a client.
Discussion:
A. Overview of Former Counsel’s Obligations
The work of legal representation comes with fiduciary duties of loyalty and confidentiality. The duty of confidentiality to the client extends beyond the termination of the representation. Maine Rule of Professional Conduct 1.9(c)(1), which sets out counsel’s duty to former clients, prohibits the attorney from using "confidences and secrets of a former client to the disadvantage of the former client except as these Rules would permit or require[.]"
A claim of IAC in PCR comes with tripartite ethical demands and conflicts. Former counsel must navigate obligations to the former client, current obligations to the court, and legitimate concerns of self-interest in one’s professional reputation as well as potential exposure to administrative disciplinary proceedings and civil liability.
While a claim of IAC ordinarily waives attorney-client and work product protections (coextensive with the scope of the IAC claim), out of court disclosures are problematic because of the lack of a client’s assessment and opportunity to object on privilege and relevance grounds. While waiver affords interested parties a fair opportunity to establish the facts underlying the claim, the paramount concept of confidentiality must be accomplished with either informed consent or the opportunity to present objections on grounds of privilege and scope.
B. Best Practices Involve Disclosures with Judicial Oversight
The best practice for counsel facing an IAC claim is to make no disclosure outside court-supervised proceedings. This option remains the most effective method to protect against over-disclosure of confidential information and consistent with the goals for promoting attorney-client confidentiality and public confidence in the legal profession. The protection against unsupervised disclosures is paramount. The disclosure of confidential information beyond the scope of the rules and the implicit attorney-client waivers could result in prejudice to the defendant on retrial, and a chilling effect on how clients confide in their lawyers.
Counsel places herself in a potentially precarious position if solely making a self-assessment of what information to share in an IAC defense. Without some form of judicial oversight, former counsel essentially decides the scope of disclosures concerning her own conduct without the benefit of basic objectivity, the hallmark of considered legal judgment. Decisions about what is "reasonably necessary" information to meet IAC allegations may be complicated by both a "natural tendency to defend and vindicate [one’s] own conduct," In re Thompson, 2014 WI 25, P. 40, 847 N.W. 2d 793, 80, and understandable emotional reactions including "feelings of anger and betrayal" DC Op 364. The caution of the RESTATEMENT is well-taken here: "the [self-defense] disclosure is warranted only when it constitutes a proportionate and restrained response to the charges." RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS, 64 cmt. e (emphasis added).
In reviewing IAC claims in PCR proceedings, the courts have exercised a variety of methods to maintain a former client’s confidentiality while recognizing that the IAC claim waives attorney-client privilege to the extent needed to prove or disprove the claim. Judges faced with challenges to maintain client confidences utilize various devices: protective orders to limit the scope of the disclosures, the subsequent use of information disclosed, and the threat of the imposition of sanctions for violations; in camera inspection of preliminary affidavits by former counsel and accompanying file documents; and depositions of former counsel. The extent of judicial involvement may turn on the scope of the IAC claim.
C. Self-Defense Exception Disclosures Are Not Recommended
Both the Maine Rules for Professional Conduct and the Model Rules contain a "self-defense exception" which is applicable in the IAC context. The exception permits revealing confidential information under certain circumstances. M.R. Prof. Conduct 1.6(b)(5) provides that: "[a] lawyer may reveal a confidence or secret of a client to the extent the lawyer reasonably believes necessary . . . to establish a claim or defense" in controversies where a lawyer’s conduct is called into question.
The self-defense exception attempts to strike a balance between permitting a lawyer accused of wrongdoing to respond to the charges, while assuring procedural fairness to the former client concerning the nature and extent of the disclosure. The self-defense exception rests on principles of agency law and fairness: "in the absence of the exception lawyers accused of wrongdoing would be left defenseless against false charges in a way unlike any other occupational group." RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS, 64 cmt. b.
The self-defense exception is permissive, not mandatory. While the text of Rule 1.6(b)(5) does not require some form of judicial supervision or participation in self-defense disclosures, the limitations imposed by the exception—only disclosures "the lawyer reasonably believes is necessary" concerning an allegation in controversy—place former counsel in a difficult situation. Counsel may be required to assess facts and legal claims without the benefit of full information and impartial judgment and guidance. In summary, while disclosure outside of the judicial process is permitted, it is not recommended.
Conclusion:
Lawyers engaged in criminal defense work must occasionally address their ethical duties as former counsel. That analysis implicates an objective consideration of client confidentiality and limited disclosures within the parameters of judicial oversight.
