Inspiration, like corn, comes from Iowa today. It’s time again for a little game called, is this a bad ethics opinion or the worst ethics opinion? The Iowa State Bar Association Committee on Ethics and Practice Guidelines self-nominated by issuing Op. 15-03.
Before I make enemies of a few Iowa lawyers that I have no doubt meant well, first, an important piece of background information: the ABA issued Formal Ethics Opinion 10-456 back in 2010 to address a question about whether a criminal defense lawyer, having a former client now seeking post-conviction relief on the basis of ineffective assistance of counsel, could voluntarily and outside of formal court proceedings (i.e., not during a deposition, in response to other formal discovery, or on the witness stand in court) pony up information to the prosecutor to defend the quality of his representation, i.e. show that s/he was effective. The end product of the ABA Opinion was an answer that didn’t definitively rule out the possibility but that said it would be exceedingly rare for a lawyer in that situation to be able to show what was necessary to justify doing so under the RPC 1.6(b)(5) exception. Or, in the actual words of the ABA Opinion:
… 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. It will be rare to confront circumstances where trial counsel can reasonably believe that such prior, ex parte disclosure, is necessary to respond to the allegations against the lawyer.
Pretty straightforward, and relatively uncontroversial. Your mileage may vary. And some states have deviated some from the conclusion based on a belief that it may not be all that highly unlikely or that the question should just be answered based on whether permissible if certain requirements are met without trying to assign percentages of likelihood. Tennessee, for example, issued Formal Ethics Opinion 2013-F-156 to address the identical question and echoed the sentiments of a couple of other jurisdictions that RPC 1.6(b)(5) should be taken to mean pretty much what it says — and what the comments explain it means — if the lawyer has concluded that a disclosure is reasonably necessary to address the allegations, the lawyer can do so, even outside of the courtroom setting, but the lawyer cannot use a shotgun to kill a fly, nor can he decide to disclose that his former client keeps Mein Kampf in his nightstand in order to rebut an allegation that a motion or brief wasn’t timely filed. Not rocket science.
But, Iowa 15-03, along comes Iowa 15-03. This ethics opinion has both a Preface and an Introduction and in the Preface it explains the committee’s reason for writing:
The Committee has been asked by [sic] United States District Court for the Southern District of Iowa, the United States Attorney [sic] office for the Northern and Southern Districts and the Federal Defender’s Office to give guidance regarding ABA Formal Opinion 10-456 and its applicability in Iowa.
Of course, immediately before that in the same Preface, the committee crafts a much larger question for itself than it says it was asked and makes answering it appear more difficult than it should be:
What otherwise protected attorney-client information may a lawyer disclose, in self-defense, when a client threatens or brings a malpractice claim, ethics complaint, claim of ineffective assistance of counsel or other claim attacking the services or performance of the lawyer? Initially Iowa R. Prof’l C. 32:1.6(b)(5) would appear to answer the question. However applying the rule can be difficult.
Well, once the Iowa committee gets through attempting to explain why 32:1.6(b)(5) doesn’t answer the question as it appears to, then applying the rule certainly can be difficult.
In the Introduction, the committee introduces you to the sort of muddled thinking about to be put on display:
[The ABA Opinion] requires that where there has been no formal or express waiver and a lawyer is relying on the so-called implied waiver of self-defense that information be released only under court supervision. [No, it really didn’t actually do that!] But applying the opinion has proven to be difficult and, in non-post-conviction matters, almost impossible. [Right, because it is an opinion that only addresses post-conviction matters!]
The opinion then talks a bit about the attorney-client privilege and acknowledges that, like most every other U.S. jurisdiction, a client/former client of an Iowa lawyer waives the attorney-client privilege by doing something like, oh I don’t know, filing court papers saying that their lawyer failed to render effective assistance of counsel to them. The opinion then discusses Iowa’s RPC 1.6 on confidentiality and quotes all it needs of the language of (b)(5) to know the right answer to the question.
(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.
Further, after rummaging around in some earlier paragraphs of the Comment to the rule that are not on point, the committee does get around to quoting paragraph , which relates directly to (b)(5), and which should again serve as a pretty good place for the committee to see the answer. Then, again in what should have been foreshadowing as the the ultimate answer in the opinion, the committee explains that an earlier Iowa entity performing the task this committee now performs got the answer correct thirty-three years ago and then cites to more Iowa case law that squares up pretty nicely with the simple solution to the problem.
But then, Iowa 15-03 turns to a discussion of the ABA opinion and proceeds to (1) build a straw man and then (2) force that straw man to listen to really poorly-reasoned statements until its little flaxen head explodes.
For the committee, because the ABA Opinion was only addressing post-conviction relief litigation, it somehow throws chaos into the analysis in any other context. The Iowa committee explains that the ABA approach wouldn’t work in the defense of a legal malpractice case and would disrupt the “attorney disciplinary bar,” along the way equating the role of the prosecutor in the ABA opinion to the lawyer’s malpractice insurance company. And, somewhere in there, the committee morphs the conversation into one in which the ABA opinion has somehow required there to be an “express client waiver” in addition to the act of placing the attorney’s performance/quality of representation at issue in some other proceeding before RPC 1.6(b)(5) can be triggered.
Having opted to transform a self-defense concept that involves waiver of confidentiality and privilege by implication through conduct (swords and shields and how privilege can’t be used as both and all that) into something that can’t actually amount to a waiver unless the targeted lawyer can also be confident that the client/former client really, really meant to waive it, the committee now has to lament the “problem” created if the disgruntled client/former client was acting pro se. As the committee explains, if the client/former client is represented by a new lawyer, the targeted lawyer can assume that the new lawyer fully advised the client/former client about the ramifications for attacking the targeted lawyer. But, if the client/former client is pro se, well the lawyer under attack can’t really know if the client/former client has acted with fully informed consent in order to have waived the “legal professional privilege.” By extension, this then also presents a problem when a third party has leveled allegations against the lawyer because again the lawyer can’t respond without first getting express consent from the client or a court order.
Having been only critical and a bit mean in everything else I have had to say about Iowa 15-03, perhaps I can offer something more constructive as criticism. The last words on the printed page are found in footnote 2, a footnote I would suggest be dropped from a much earlier place in the opinion and edited as follows:
as towhether a court can declarethe privilege is waived as a matter of law without notice to and an opportunity for the holder of the privilege to be heardis beyond the scope of the Committee.