Nix v. Whiteside

Justice Brennan,

concurring in the judgment.

This Court has no constitutional authority to establish rules of ethical conduct for lawyers practicing in the state courts. Nor does the Court enjoy any statutory grant of jurisdiction over legal ethics.

*177Accordingly, it is not surprising that the Court emphasizes that it “must be careful not to narrow the wide range of conduct acceptable under the Sixth Amendment so restrictively as to constitutionalize particular standards of professional conduct and thereby intrude into the state’s proper authority to define and apply the standards of professional conduct applicable to those it admits to practice in its courts.” Ante, at 165. I read this as saying in another way that the Court cannot tell the States or the lawyers in the States how to behave in their courts, unless and until federal rights are violated.

Unfortunately, the Court seems unable to resist the temptation of sharing with the legal community its vision of ethical conduct. But let there be no mistake: the Court’s essay regarding what constitutes the correct response to a criminal client’s suggestion that he will perjure himself is pure discourse without force of law. As Justice Blackmun observes, that issue is a thorny one, post, at 177-178, but it is not an issue presented by this case. Lawyers, judges, bar associations, students, and others should understand that the problem has not now been “decided.”

I join Justice Blackmun’s concurrence because I agree that respondent has failed to prove the kind of prejudice necessary to make out a claim under Strickland v. Washington, 466 U. S. 668 (1984).