NACDL

In July 2010 the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued an opinion that every criminal defense lawyer facing or bringing a claim of ineffective assistance of counsel (IAC) should consider. Formal Opinion 10-456, “Disclosure of Information to Prosecutor When Lawyer’s Former Client Brings Ineffective Assistance of Counsel Claim” (“the Opinion”), concludes that an IAC claim waives the attorney-client privilege only as to those communications that are relevant to the specific allegations of ineffective assistance, unless a client has given explicit and informed consent to broader disclosures. Further, absent client consent, disclosures may be made only in a formal proceeding that provides for judicial supervision.¹ The Opinion explains that voluntary disclosures outside formal proceedings (such as the common scenario in which a prosecutor calls to ask about the case or to see client files) are impermissible, and that the se