Controversy Between Lawyer and Client?

Mike asks,

Mark, do you have any authority to cite to support your interpretation that an IAC claim is not a “controversy between the lawyer and the client”?  Just wondering because it certainly seems like one to me.

I know of no authority directly answering the question, “does an ineffective-assistance-of-counsel claim in a motion or writ for post conviction relief create a controversy between the lawyer and the client?”

But here are some of my thoughts.

According to the style of the case (“Ex Parte [Defendant]” or “State v. [Defendant]“) the legal controversy is not between the lawyer and the client, but between the client and the state.

You might say, “but the rule doesn’t specify a legal controversy; when my client says I was ineffective and I wasn’t, there is a controversy between my client and me.” This is too broad a reading of the word “controversy”; under that reasoning any time the lawyer and the client disagree the lawyer may publicly reveal client confidences.

The other half of the 1.05(c)(5) exception is, “to the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer.” A post conviction IAC claim is not a “controversy” to which it is “necessary” that the lawyer “establish a defense.” An IAC allegation does not necessarily, nor even presumably, put the lawyer and the client at odds. Lawyers make mistakes; while I don’t subject my trial wins to close scrutiny, I suspect that if I did I’d find that I’ve never tried a perfect case. When a client says, “you should have done X, but didn’t” and I agree that I should have done X but didn’t, we don’t have a controversy. The state and the client have a controversy—did my performance fall beneath an objective standard of reasonableness, and was my client prejudiced by my failure to do X?—but I’ve got nothing to say about the second part, and less to say about the first (my standards for reasonably effective assistance of counsel are much higher than the system’s).

There is another rule, 1.05(d)(2)(iii):

A lawyer also may reveal unprivileged client information.

(2) When the lawyer has reason to believe it is necessary to do so in order to:

(iii) respond to allegations in any proceeding concerning the lawyer’s representation of the client…

“Proceeding concerning the lawyer’s representation of the client” is a much better description of the postconviction IAC proceeding than “controversy between the lawyer and the client.” So 1.05(d)(2)(iii) would apply to this situation (respond to allegations in any proceeding concerning the lawyer’s representation of the client) except that it only applies to unprivileged client information. In a criminal case in Texas, there is no unprivileged client information.

The rules contemplate “a proceeding concerning the lawyer’s representation of the client” as distinct from “a controversy between the lawyer and the client.”

The rules also consider “a proceeding concerning the lawyer’s representation of the client” less worthy of privilege waiver—only unprivileged client information can be revealed—than “a controversy between the lawyer and the client”—confidential information, whether privileged or not, can be revealed.

It would not makes sense to say that in “a proceeding concerning the lawyer’s representation of the client,” the lawyer may reveal only unprivileged information, but that any time the lawyer and client have a disagreement (see, e.g., Sonner and Uhrig) the lawyer may reveal privileged client information.

Model Rule 1.6(b)(5) is instructive:

(b) A lawyer may reveal information relating to the representation 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…

It applies to both privileged and unprivileged information; though the same rules apply to both situations, “to respond to allegations in any proceeding concerning the lawyer’s representation of the client” is different than “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client.” Under the Model Rules, unlike under the Texas rules, a lawyer can reveal privileged information to the extent he reasonably believes it necessary to respond to allegations concerning his representation of the client. But even the Model Rules don’t allow a lawyer willy-nilly to spill the beans to the government keep his client in prison.

Here’s some of the Model Rules’ commentary:

Paragraph (b) 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 interest 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.

A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision. See Rules 1.1, 5.1 and 5.3.

We criminal-defense lawyers are in the business of keeping our clients’ secrets. The things we learn while representing our clients are safer with us than with their spouses, their doctors, or their priests. We should not be looking for reasons to reveal those secrets; instead, we should look for justification not to.

17 responses to “Controversy Between Lawyer and Client?”

  1. If an appellant has filed a defective representation appeal – and is calling his ex-lawyer (his trial lawyer) as a witness at an evidentiary hearing in the appeal proceedings – then his ex-lawyer is now a competent and compellable witness. Since there’s no property in a witness, I would have thought that the prosecution is perfectly entitled to speak to the ex-lawyer – to take a witness statement at the very least. That’s not quite the same thing as suborning perjury. If the ex-lawyer has been intimated as a witness, privilege has flown off.

    Until then, there might be an expectation that the ex-lawyer formally responds to the Court and comments on the grounds of appeal. But – IMHO – he’s not obliged to do so, unless the Court tells him to do so.

    PS Only the clergy now truly observe privilege.

    • The prosecution is entitled to speak to the lawyer (privilege doesn’t change when the lawyer-client relationship ends), but the lawyer isn’t entitled to speak to the state. \

      Your opinion might seem appealing to lawyers who are offended by clients calling them ineffective, but it’s not what the disciplinary rules say in Texas.

  2. Let’s say for the sake of this discussion that you are correct and that privileged information should not be revealed in the face of an IAC claim. You assert “there is no unprivileged client information in Texas.” Really? Does that extend to lawyer actions on behalf of clients?

    The typical IAC claim does not necessarily implicate privileged information from the client at all. It more typically centers upon the attorney’s actions or omissions and trial strategy. And, not surprisingly, I’ve seen a number of IAC claims that contain patently false allegations. The clients, who have now lost at trial and are desperately seeking a way out of their predicament, impugn their former lawyer’s integrity and competence by claiming that the lawyer promised them a certain outcome or did not perform various acts of due diligence in the course of representation. “He never visited me in jail”, “He never looked at the offense report,” “He told me I would get probation if we took it to trial.” Just a few examples.

    I understand that the ultimate goal is to help the client. But must that goal be achieved at any cost, including the truth? Are you maintaining that we should stand idly by, or meekly mute, as our reputations as advocates are attacked?

    You seem to view any cooperation with the government as collaboration with the enemy. But sometimes the enemy is an untruth, rather than the prosecution.

    I will reserve judgment on the issue of client confidences until you are able to produce some actual authority for your position in the above post. That means caselaw or an ethics opinion. Not your opinion or anyone else’s. I am going to presume that you have researched the issue — I have not, but I have been told that there are a number of Texas opinions saying the exact opposite of what you have asserted above: That an IAC claim IS a controversy between lawyer and client. It is more than a mere disagreement. It is a serious allegation and, often, a dispute over crucial facts.

    But, again, leaving that aside for the moment and conceding that a lawyer should certainly not disclose privileged information willy-nilly, are you really saying that ANY information about the case, even a recounting of your own actions in defense of the client, is privileged information and should not be shared?

    If I get a call from someone in the Writs Division and they tell me that I am the subject of an IAC claim, I am going to want to know what the former client is saying about me. If it’s true, it’s true. I have no problem falling on my sword because we all make mistakes. But if it’s not, I similarly have no problem with contradicting false allegations of incompetence by setting out my actions and trial strategy in an affidavit. At that point, my primary concern must be the protection of my reputation, not passively assisting an unhappy client with the furtherance of a specious claim. I didn’t swear any oath to do that.

    • That you may be angry with an “unhappy client” who tries to wrongly shift blame to you in the course of his effort to alter his conviction is a perfectly normal human reaction. Of course you want to know what the client is claiming. Of course, if it’s not consistent with your understanding, you want to defend your honor. That’s how any normal person would feel.

      But this isn’t about “feelings.” Whether the client has fabricated a claim of IAC from whole cloth or simply sees it through the eyes of a desperate man, his beef is with his conviction, not his lawyer, even though your feelings are implicated. What you see as “protecting your reputation” and “passively assisting” is in direct conflict with the nasty job we do. We defend the accused, both the nice, innocent ones and the nasty, lying guilty ones. We don’t only take them on when things are happy because they love us and are paying us money, but when they may, rightly or wrongly, point to us as the source of their misery.

      If your reputation is good, it will withstand scrutiny on its own. The lawyer is just the mechanism in the defendant’s fight, not the target or the object. It provides no basis to throw privilege to the wind, or to undermine the defendant to vindicate our “feelings.”

    • Worrying about your reputation is ego. If you get a call from the writs devision, your choice is easy: (1) admit to all the things you did wrong or should have done differently, or (2) shut the hell up.

      • (1) is only an option if you have your client’s consent. There is, oddly enough, no “to help the client” exception to client confidentiality in Texas criminal cases.

        • So you can’t look at a records and say ” I should have tried to have that suppressed” or “I should have hired this expert”? I’ve never been in this situation so I’ve never really thought about this aspect. And we never discussed this in law school (I know you are shocked!). I’ve heard much more experienced lawyers say they get with the appellate counsel and write out an affidavit of all they did wrong in the case. Maybe they just didn’t mention getting their client’s permission.

          • You can reveal privileged information to the client’s appellate counsel. That’s 1.05(c)(3).

            But let’s say that you investigate your client’s case and discover that he has an alibi. According to the rules, you can’t reveal this without the client’s consent. Weird, huh?

    • In criminal cases, a client has a privilege to prevent the lawyer or lawyer’s representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship.

      Does that extend to lawyer actions on behalf of clients? Do you have some argument that it does not? The fact that you did X came to your knowledge only because you were representing D.

      I doubt that you would practice law-by-folklore (“I have been told that there are a number of Texas opinions…”) in defending your clients. There is nothing on point.

      Here (thanks to an alert reader, is a Washington case, not directly on point, but noting that an IAC claim implicates the waiver to “respond to allegations in any proceeding concerning the lawyer’s representation of the client”—that is, the 1.05(d)(2)(iii) waiver, which applies in Texas only to unprivileged client information, and so to nothing in criminal cases. In that case the lawyer (who has been in the news lately in relation to another ethically interesting situation) had been allowed to intervene in the post-trial proceeding; the court of appeals reversed, noting that “intervention pitted an attorney against his former client….” It wasn’t the allegation that pitted lawyer against client, but the lawyer’s reaction to it.

      I suspect that the fact that a lawyer is not permitted to reveal privileged information just because he is responding to allegations in any proceeding concerning his representation of the client is a Texas quirk. The issue is not likely to arise in an appeal (which is, for the most part, about trial-court error). It might arise in a grievance.

      Even if you don’t accept my analysis, would you prefer to be grieved or not grieved? You can be disciplined for revealing privileged information when you aren’t permitted to; you can’t be disciplined for not revealing privileged information when you are permitted to. Do you want to be the test case?

      That argument may persuade some; the better argument for me is that keeping secrets is easy when there’s nothing at stake, but the accused is entitled to a lawyer who keeps his secrets when keeping secrets is hard.

      When I shuffle off this mortal coil, I would much rather be remembered for keeping my clients’ secrets than for never screwing up a case. I don’t have to choose, of course: I’ve never had an IAC claim go anywhere, even though I follow the rules and don’t talk with anyone but my client until I have his consent or a court order. I will bet that there has never been an IAC claim upheld because the trial lawyer declined to help the state. If the state wants an affidavit, they can ask the judge to order me to file one. Even if I thought the rules allowed me to help the state, why wouldn’t I make the state jump through the hoops?

  3. Still — might a finding of ineffective assistance ultimately lead to a malpractice claim or a bar grievance?

    This would be comparable, I think, to admitting to commiting a separate crime while pleading guilty to a probation violation.

    Not that this justifies revealing privileged information, mind you. But this could be a reason that you wouldn’t want to admit to making a mistake.

    • I don’t like admitting my mistakes, but I’m not afraid of a grievance or malpractice claim. I think it unlikely that the grievance committee would do much to a lawyer who made a mistake and then came clean; and I’ve got malpractice insurance in case a) I’m found to have been ineffective; b) the case is reopened; and c) the client wins—all of which would have to happen for a malpractice suit to go anywhere.

      People have trouble understanding risks. I think that lawyers blow the risks of being found to have been ineffective way out of proportion.

  4. I’m trying to understand the lawyer’s motivation to reveal client information. What bad thing happens to you if a former client prevails in his IAC claim? Some judge says he thinks you suck, and then…what?

    • Here’s what a concerned commenter said:

      When you make an ineffective assistance claim you are essentially putting the attorney “on trial”. It is a label that an attorney must deal with the rest of their career. They have to explain and admit it to the state bar and bar being considered for any court appointed work. Not to mention the fact that if a claim is successful, they risk the possibility of being sued by their client.

      A lot of this is chicken-little stuff, but it explains why lawyers often aren’t entirely candid in responding to IAC claims.

      • You know, it has always bothered me that the applications for a public defender job or an assigned counsel gig here in CT require that the applicant list all instances in which they were the subject of a habeas.

        I suppose, on the one hand, it is to check and make sure that they weren’t found to be ineffective for something truly ineffective, but on the other, it seems like placing far too much emphasis on something that should be accepted as routine.

        Perhaps if the question was “list all instances in which you’ve been found to be ineffective”.

        • That just gives the scared lawyers another reason to think that the sky will fall if they don’t paint their actions in the best possible light.

  5. The risks are very significant to anyone who does indigent defense work in Harris County or any other jurisdiction where a finding of IAC disqualifies them from representing appointed work. And, yes, as an earlier commenter pointed out, the record of a motion or writ hearing in which a claim of IAC prevailed is a public record, forever accessible, and could be used as the basis of a grievance if the client were so inclined.

    I posed the original question that I did because I genuinely wanted an answer and I respect both you and Troy McKinney. But it seems that no one can cite any legal authority to support their opinions on the subject. Greenfield wants to talk about “feelings,” but nowhere in my comment was there any reference to feelings or being angry with the client as a motivation for rebutting a specious claim. I have represented plenty of clients who have made me angry, and even some I have outright hated. I’ve gotten some of my best results for them, too, because that is part of being a professional. Retaliation has nothing to do with it. Neither does ego. But reputation, and the desire to maintain a good one, has nothing to do with ego. It is something far more valuable than any one case, and far more valuable even than a law license.

    Having read the responses, it seems we have a fundamental disagreement. 1. You don’t believe that an IAC claim (or apparently even a grievance) creates a “controversy” between the lawyer and the client. From my perspective, it is rather difficult to imagine what else that word could mean if it does not encompass a dispute that carries legal consequences. If you rule out IAC claims, what is left? Civil or criminal litigation where the lawyer is a party? 2. You believe that everything having anything to do with the case is privileged. I do not. My issuing subpoenas is not a fact that came to my knowledge as a result of the attorney client relationship. It is an ACT, not a FACT. I didn’t LEARN it; I DID it. Even if you accept your dubious proposition that the claim doesn’t create a controversy, I think there are plenty of performance related issues you could ethically address under oath.

    By making an IAC claim, the client effectively creates a conflict of interest between himself and his former lawyer. It is not the State dividing and conquering, it is the client attacking from the rear with “friendly fire.” It may well be that such a move is justified, since lawyers are ineffective far too often. But the facts are the facts, and such a hearing by necessity delves into them. If a lawyer cannot explain his actions, the factfinder will be unable to do its nominal job.

    I see no virtue in playing cat and mouse games and artfully trying to dodge questions on the stand in order to conceal the fact that I rendered effective assistance and attempt to keep a meritless claim alive. It is a waste of time and is not being candid toward the tribunal. I would rather sign an affidavit either admitting blame or contradicting the claim than go through an exercise simply to make the government jump through hoops. Especially when, due to the client’s allegations, I DO have an interest in the outcome of the hearing and what findings of fact are made on the record.

    Lastly, I would hope at least that you would concede this much, although that hope is admittedly faint at best: If a client has sworn out an affidavit that sets forth false allegations against you, it is perjury. Even if you maintain your narrow definition of “controversy,” can you not see the problem this creates for the attorney? The privilege is waived if the client is committing a crime. We are also obligated to disclose it to the tribunal if we believe our client (or any witness) has committed perjury. So if your client alleges, “I asked Mr. Bennett to subpoena Witnesses X, Y, and Z,” and you know it is not true, are you not obligated to contradict it by the very rules you have already cited elsewhere?

    Do not misunderstand me. I have no love for the government and I want to help my clients. But not at the expense of my own ethics or reputation, especially if I know the claim is false. When I leave this mortal coil, I don’t know what I’ll be remembered for, but hopefully one of the things people will say is that I was honest. –Yeah, a longshot maybe, but I can dream, right?

    • Mike, when the purpose of responding to false allegations by a client is to defend against his impugning a lawyer’s competence, that’s a matter of feelings. The lawyer is not subject to discipline or damages in that proceedings. The lawyer is not a party to the proceedings. The only thing at risk is hurt feelings.

      Once the client has made false allegations, and assuming it to be perjurious, the crime is committed. The lawyer has neither facilitated it or participated in it. If he did, that’s a different problem, but once the perjury is complete, the lawyer does not become the rat, entitled to reveal confidence and take his former client down because his client lied in the course of an ancillary proceeding.

      Not only are you not obliged to “correct” the client, but you are not entitled to do so. Should the IAC claim later give rise to a claim in which the lawyer is a party, and is subject to either discipline or damages, everything changes. But until that happens, the only proper course is to sit mute, no matter how you feel about the false claims.

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