Defense Counsel Allowed to Testify at Former Defendant’s Ineffective Assistance of Counsel Hearing

Antwan Peppers recently filed an ineffective assistance of counsel claim against the defense attorneys who represented him in his 2008 murder trial based on the attorneys’ failure to use Peppers’ alibi defense.  Peppers was ultimately sentenced to fifty years for premeditated first-degree murder and has since appealed his conviction based on the ineffective assistance of counsel claim.  The attorneys argued that phone calls with Peppers’ girlfriend made it “problematic to use the alibi” because his girlfriend’s statements were inconsistent with other witnesses’ statements.  The attorneys further stated that they decided not to use the alibi because they felt it was in Pepper’s best interest.

Wendell Betts, the lead defense attorney during Peppers’ murder trial, was set to testify at the hearing on Peppers’ ineffective assistance claim, but Peppers objected, arguing that the attorney-client privilege barred Betts from releasing any information regarding the representation. The judge presiding over the hearing held that this type of hearing actually constituted an exception to the attorney-client privilege and stated that as such Peppers informed consent was not needed.

ABA Model Rule of Professional Conduct 1.6, the confidentiality rule, should be given some consideration in this type of situation.  It protects all of the client information learned throughout the representation whether or not the information is covered by the attorney-client privilege.  However, ABA Formal Opinion 10-456 discusses the exception embedded in Rule 1.6 that allows attorneys to disseminate limited information in self-defense.  Specifically, section 1.6(b)(5) states, “[a] lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary . . . to establish a claim or defense.”  In the opinion, the ABA goes on to state that attorneys confronted with ineffective assistance claim hearings are not only able to defend the representation, but may also give the court insight into whether the defendant has a valid claim warranting a new trial.  Even with this exception in Rule 1.6, courts still generally limit attorneys’ testimony to what is reasonably necessary in order to protect the defendant and ensure that he or she receives a fair hearing.

Click here to read what Legal Ethics Forum has to say about this matter.

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