ABA-456
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| Although most courts hold that a criminal defendant's claim of "ineffective assistance of counsel" waives the attorney client privilege, it does not relieve the defendant's lawyer of the ethics duty of confidentiality. If the court overrules a privilege claim, the defendant's lawyer "must provide [the information sought] or seek appellate review." In analyzing possible exceptions to the ethics duty of confidentiality, the lawyer might rely on the self defense exception under which "the lawyer may disclose information relating to the representation insofar as necessary to dissuade a prosecuting, regulatory or disciplinary authority from initiating proceedings against the lawyer or others in the lawyer's firm, and need not wait until charges or claims are filed before invoking the self defense exception." The lawyer may rely on that exception only if the charges "imminently" threaten the lawyer with "serious consequences," and only to the extent that disclosure is necessary. Given the narrowness of the self defense exception, "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." |