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Can My Lawyer Testify Against Me?

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By Ephrat Livni, Esq. on December 04, 2015 11:05 AM

Your attorney can testify against you in extremely limited circumstances. If it happens, it either means you are now adversaries, on opposite sides of a case, or that the lawyer has been subpoenaed and is obligated to testify.

Regardless, a lawyer has an ethical obligation to maintain client confidences to the extent possible, which means that testimony does not equate with spilling secrets. This is true even in the criminal context when a client files a motion to reopen a case and reverse a conviction based on ineffective assistance of counsel.

What Is Ineffective Assistance of Counsel?

Ineffective assistance claims are based on a constitutional right to a fair trial. If a lawyer's representation was so bad as to be ineffective, a defendant can argue that the constitutional right to a fair trial -- guaranteed by the 6th Amendment -- was violated.

When that happens, the court may hold a hearing on the claim. Then -- in an ironic twist -- the state represents your attorney's work in order to defend its conviction.

It's a little complicated conceptually. But basically, the state defends your lawyer's work as sound and constitutional, saying the conviction was based on the evidence and not on counsel's failures or inadequacies.

What Will Be Revealed?

It is very important to remember, however, that ineffective assistance of counsel claims argue that the process that was due a defendant was flawed. So, in those cases, the state and your former criminal defense attorney are defending the trial process. A hearing is not an opportunity for your lawyer to spill your secrets and the requirement to maintain confidentiality to the extent possible remains. In fact, your former lawyer will decline to answer some questions based on privilege and the court will have to decide if it is absolutely necessary to reveal.

In Sum

Hearings on ineffective assistance claims are rarely granted. Most claims are dismissed without any testimony taken. Meanwhile, the vast majority of lawyers of any kind in any context will assiduously avoid revealing client confidences.

In the words of the American Bar Association, speaking on lawyer testimony at ineffective assistance claims, "Outside judicial proceedings, the confidentiality duty is even more stringent. Even if information clearly is not privileged and the lawyer could therefore be compelled to disclose it in legal proceedings, it does not follow that the lawyer may disclose it voluntarily. In general, the lawyer may not voluntarily disclose any information, even non-privileged information, relating to the defendant's representation without the defendant's informed consent."

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