Prosecutors Seeking Ineffectiveness Waivers Face Ethical Risks

Criminal defense attorneys have noted an increasing effort by prosecutors to have criminal defendants waive ineffectiveness claims when negotiating pleas.   But in a countervailing trend, Tennessee recently joined the District of Columbia and North Carolina in permitting criminal defense counsel alleged by a former client to have provided ineffective assistance of counsel to voluntarily provide information to prosecutors.  Rejecting the approach advocated by the ABA, the decision provides criminal defense counsel discretion to determine whether disclosure is "necessary . . . to respond to allegations in any proceeding concerning the lawyer's representation of the client."  R.P.C. 1.6(b).  The decision circumscribes what a lawyer may disclose: only such information necessary to respond to the allegations or information "generally known."  But the decision does not require criminal defense counsel to wait until in-court proceedings to provide such information.