Controversy Between Lawyer and Client?

 Posted on April 11, 2012 in Uncategorized

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.