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Imagine this scene: a defense lawyer drives over to the prosecutor’s office and hops out of the car with a couple of boxes in tow. He enters a conference room, sits down across from a prosecutor—with nobody else around—hands over all of the case files, and divulges to the prosecutor his private communications with the client he is supposed to be defending. No, this is not a page taken from a Grisham novel in which a crooked defense lawyer gets paid off for backstabbing his client in a nefarious plot to guarantee a conviction. Rather, it is a scene that plays out in broad daylight in our adversarial system far too often.

Prosecutors and defense attorneys battle each other in and out of court all the time, but there is one context in which they sometimes cooperate to the detriment of criminal defendants: when trial lawyers work with the prosecution to undermine post-conviction claims of ineffective assistance of counsel. In most jurisdictions, a defendant cannot raise the claim that her Sixth Amendment right to the effective assistance of counsel was violated (because her lawyer’s deficient performance prejudiced the client at trial) until post-conviction proceedings. At that stage, the defendant can ask a court to review her conviction and/or sentence on the basis that the trial lawyer made problematic decisions or failed to take certain actions that would have been beneficial. When such a claim arises, there are instances where the trial lawyers actually work with prosecutors to defeat it. A recent case out of Nevada reveals that not only is this practice more common than one might expect, but also that state bars may permit it.

Of course, a trial attorney’s decision to cooperate with prosecutors raises serious ethical questions on both sides. After all, lawyers have ongoing obligations of loyalty and confidentiality. Defense counsel cannot simply breach attorney-client privilege and confidentiality to save their own hides once a legal matter concludes or the client moves forward with a new legal representative, and prosecutors should not encourage such behavior. Unfortunately, some state bar associations that have analyzed the issue have concluded—wrongly, in our estimation—that the rules of professional conduct permit this sort of collusion. Jenna Newmark wrote an excellent and thorough article on the topic, and it is well worth reading. She concludes that trial lawyers jeopardize the values of confidentiality and loyalty when they invoke “self-defense” exceptions to fight ineffectiveness claims. The Ethics Bureau at Yale Law School has echoed this message. The American Bar Association agrees.

Early this month the Nevada Standing Committee on Ethics and Professional Responsibility issued an opinion indicating that trial lawyers could assist prosecutors, within certain—very ill-defined—bounds. (Those with a Bloomberg subscription can find an article on the opinion titled “Nevada Bar Rejects ABA View on Ineffective Assistance Claims” from July 10, 2018.) While this ruling itself is problematic for all of the reasons Newmark, the Ethics Bureau, and the American Bar Association explore, we want to raise a related concern here. One of the main risks with defense attorneys assisting prosecutors is, as Newmark puts it, ““danger that the lawyer will over-disclose confidential information.” The Nevada opinion also acknowledges this danger, though it provides no analysis for how to avert it. After giving defense lawyers the green light to disclose relevant confidential information to prosecutors, the Committee wrote, “[h]owever, disclosure is permitted only to the extent reasonably necessary to respond to the allegations and must be narrowly tailored to the issues raised by the former client.” What is reasonably necessary? How can they make sure that responses are narrowly tailored?

Defense attorneys are not the only ones who risk running afoul of professional ethical rules in these dicey circumstances. Prosecutors who invite them to the office, throw the door open, welcome them, and take whatever information that they can get their hands on should know that they could be breaking ethical rules as well. Consider Rule 8.4, which holds that it is “misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct [and] knowingly assist or induce another to do so . . . .” Because there is no reading of the rules that would permit a defense lawyer to share all of the confidential information a client disclosed, prosecutors who embrace and celebrate a trial lawyer’s wholesale cooperation very likely “knowingly assist” in the violation of the rules requiring loyalty and confidentiality.

Prosecutors also put themselves in a thorny position when collaborating with trial counsel because the rules mandate reporting when one lawyer knows that another has violated the rules. That alone should give prosecutors pause.

There is a sensible alternative that would help alleviate all of the landmines that litter this playing field: judicial supervision of any communications between trial lawyers and prosecutors in post-conviction. It is not only in the client’s interest, the post-conviction lawyer’s interest (by ensuring that the trial lawyer does not over-disclose), and the trial lawyer’s interest (by ensuring again that she does not break the rules), but also the prosecutor’s interest because the rules implicate every lawyer involved. Nevada’s Bar suggested that judicial supervision would overburden the system. This claim is empirically unsubstantiated; anecdotally, very few post-conviction claims of ineffectiveness actually reach the point of evidentiary dispute. Moreover, it is far too dismissive of the damage done when prosecutors and defense attorneys join hands to protect a conviction. Clients will be reluctant to trust lawyers if they realize that those lawyers may eventually turn against them. As the Ethics Bureau explained in an amicus brief in Pennsylvania (available on Westlaw), “Public confidence in the legal profession erodes when clients feel that they cannot trust their lawyers.” A bright-line approach would ultimately spare all of the parties the uncertainty, and would provide the defendant some reasonable expectation of protection.

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