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The Champion

December 2011 , Page 18 

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What (Can) (Should) (Must) Defense Counsel Withhold From the Prosecution in Ineffective Assistance of Counsel Proceedings?

By David M. Siegel

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

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