Protecting the Continuing Duties of Loyalty and Confidentiality in Ineffective Assistance of Counsel Claims

Abstract

The success or failure of an ineffective assistance of counsel claim turns largely on the testimony of trial counsel. It is therefore common for the government to communicate ex parte with trial counsel in order to formulate its response to such a claim. But even after the representation has ended, trial counsel continues to be bound by duties of loyalty and confidentiality to their former client, as well as the attorney-client privilege, subject to a limited waiver relative to information that is reasonably necessary to respond to the ineffectiveness claim. Because of their interests in the litigation, however, neither trial counsel nor the government is positioned to objectively decide what information is covered by that waiver. In order to ensure that trial counsel respects their ethical duties to their former client and to protect the sanctity of the attorney-client relationship, post-conviction courts should prohibit trial counsel from communicating ex parte with the government. These courts should instead require that all such communications take place on the record—ideally at a deposition, but alternatively through affidavits.