(For another case in which an attorney declines to provide an affidavit refuting the petitioner's claim of ineffective assistance, citing ABA Formal Opinion 10-456, see United States v. Rankin, No. 5:09cr13, 2010 WL 5478472 (W.D. Va. Dec. 30, 2010).)
In a § 2255 proceeding, the United States filed a motion for an order directing the petitioner's former counsel to provide information to the United States concerning petitioner's claims of ineffective assistance of counsel.
The West Virginia Rule of Professional Conducts state: "A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized . . . to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client . . . or to respond to allegations in any proceeding concerning the lawyer's representation of a client."
On July 14, 2010, the ABA's Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 10-456, "Disclosure of Information to Prosecutor When Lawyer's Former Client Brings Ineffective Assistance of Counsel Claim." This Formal Opinion states:
One of the attorneys who was subject to the ineffective assistance allegation first requested that the Court make a determination regarding whether the petitioner would be prejudiced by the alleged error before the Court require any attorney to respond to the United States's request for disclosure. The United States argues that the Court should reject Formal Opinion 10-456 because, inter alia, attorney disclosures should not be only permissible with client consent or in a judicially supervise proceeding. The United States contends that once a client makes allegations against an attorney, the lawyer may exercise his or her discretion regarding disclosure of information necessary to defend against those allegations and no court supervision is necessary. The United States submitted a proposed order that finds that a petitioner alleging ineffective assistance of counsel impliedly waives his attorney-client privilege.
Although an ineffective assistance of counsel claim ordinarily waives the attorney-client privilege with regard to some otherwise privileged information, that information still is protected by Model Rule 1.6(a) unless the defendant gives informed consent to its disclosure or an exception to the confidentiality rule applies. Under Rule 1.6(b)(5), a lawyer may disclose information protected by the rule only if the lawyer “reasonably believes [it is] necessary” to do so in the lawyer's self-defense. The lawyer may have a reasonable need to disclose relevant client information in a judicial proceeding to prevent harm to the lawyer that may result from a finding of ineffective assistance of counsel. However, it is highly unlikely that a disclosure in response to a prosecution request, prior to a court-supervised response by way of testimony or otherwise, will be justifiable.
The Court concludes that in the context of a § 2254 petition or a § 2255 motion alleging denial of effective assistance of counsel, the Fourth Circuit is likely to approve only a narrow implied waiver of the attorney-client privilege. The Court advises other District Courts, when considering habeas corpus petitions alleging denial of effective assistance of counsel, to supervise the government's requests for disclosure of privileged communications between defendant and defense attorney.