Confidentiality and Disclosure: What the New ABA Criminal Justice Standards (Don\u27t) Say about the Duties of Defense Counsel

Although the duty to keep client confidences is one of a defense lawyer\u27s defining characteristics, there are times when a lawyer will disclose otherwise confidential information to protect the safety of third parties, convey information to successor counsel, or defend against claims of ineffective assistance. Although disclosure in such instances is sometimes mandated by state professional ethics codes, more often the decision to disclose is left to the discretion of the individual lawyer. One of the few formal resources that offers guidance to defense counsel in making disclosure decisions is the American Bar Association\u27s Criminal Justice Standards for the Defense Function. This Essay discusses several aspects of proposed changes to the Standards, suggesting that the Proposed Standards could be strengthened by directly confronting practical questions they now avoid, such as what to tell the client about the limits of confidentiality: whether, when, and to whom disclosure should be made when in anticipation of physical harm or criminal conduct by the client; and the degree to which confidences should be revealed following the conclusion of representation