Since lawyers draft their own ethics rules, they unsurprisingly include provisions allowing them to disclose client confidences to defend themselves from clients’ (and even third parties’) attacks. A paradigmatic example allows criminal defense lawyers to disclose client confidences to defend themselves from their clients’ “ineffective assistance of counsel” assertions.
In United States v. Mayes, the court’s brusque order allowed such a criminal defendant’s lawyer “to communicate with the government counsel or their representatives, formally or informally, orally or in writing, and to provide documents relevant to their representation of defendant.” Case No. CR-20-240-F, 2025 U.S. Dist. LEXIS 119038, at *1-2 (W.D. Okla. June 17, 2025). Although the terse three-paragraph order didn’t mention it, many if not most state bars have followed the reasoning from ABA Comm. on Pro. Ethics & Resp. Formal Op. 456 (2010) to adopt an ethics overlay to this process — requiring such targeted criminal defense lawyers to seek some judicial protection or agreement with prosecutors prohibiting use of any disclosed confidences, to the criminal defendant’s later detriment. See, e.g., D.C. Legal Ethics Op. 364 (2013).
As in other contexts, lawyers seeking ethics guidance frequently must look beyond the rules — for explanatory ethics opinions, statutes, case law and even judicial nuance before taking any high-stakes steps.
