Robert A. McClure v. Frank Thompson

Appeal from the United States District Court for the District of Oregon; Ann L. Aiken, District Judge, Presiding. D.C. No. CV-97-06182-ALA.

Before FERGUSON, W. FLETCHER, Circuit Judges, and KING,* District Judge.

Opinion by Judge WILLIAM A. FLETCHER; Dissent by Judge FERGUSON.

Oregon state prisoner Robert A. McClure appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his jury trial conviction for three aggravated murders. McClure's original defense attorney, Christopher Mecca, placed an anonymous telephone call to law enforcement officials directing them to the locations of what turned out to be the bodies of two children whom McClure was ultimately convicted of killing. The district court rejected McClure's arguments that the disclosure constituted ineffective assistance of counsel, holding there was no breach of the duty of confidentiality and no actual conflict of interest. We affirm.

On Tuesday, April 24, 1984, the body of Carol Jones was found in her home in Grants Pass, Oregon. She had been struck numerous times on the head, arms and hands with a blunt object. A gun cabinet in the home had been forced open and a .44 caliber revolver was missing. Two of Jones' children — Michael, age 14, and Tanya, age 10 — were also missing. The fingerprints of Robert McClure, a friend of Jones, were found in the blood in the home. On Saturday, April 28, McClure was arrested in connection with the death of Carol Jones and the disappearance of the children.

That same day, McClure's mother contacted attorney Christopher Mecca and asked him to represent her son. As discussed in more detail below, sometime in the next three days, under circumstances described differently by McClure and Mecca, McClure revealed to Mecca the separate remote locations where the children could be found. On Tuesday, May 1, Mecca, armed with a map produced during his conversations with McClure, arranged for his secretary to place an anonymous phone call to a sheriff's department telephone number belonging to a law enforcement officer with whom Mecca had met earlier.

Later that day and the following day, sheriff's deputies located the children's bodies, which were in locations more than 60 miles apart. The children had each died from a single gunshot wound to the head. Mecca then withdrew from representation. On May 3, McClure was indicted for the murders of Carol Jones and her children. At trial, the prosecution produced extensive evidence that stemmed from the discovery of the children's bodies and introduced testimony regarding the anonymous phone call. McClure was found guilty of all three murders and was sentenced to three consecutive life sentences with 30-year minimums. On direct appeal, his conviction was affirmed without opinion. State v. McClure, 80 Or.App. 461, 721 P.2d 482 (1986), rev. denied, 302 Or. 158, 727 P.2d 128 (1986).

The parties agree that Mecca and McClure met at the jail and spoke on the telephone on a number of occasions between April 28 and May 1. However, the substance of the conversations between McClure and Mecca are the subject of significant dispute.

Mecca recorded his account in notes that he wrote immediately after the children's bodies were discovered. Mecca also gave deposition testimony for McClure's state post conviction proceeding, submitted an affidavit prior to McClure's federal habeas proceeding, and gave testimony at the federal district court evidentiary hearing in the habeas proceeding. In his notes, Mecca wrote that McClure had initially claimed that he was "being framed" for the murder, but that he was nervous about his fingerprints being in the house. He had asked Mecca to help him remove some other potential evidence, which Mecca declined to do. According to the notes, on the Sunday night after McClure's Saturday arrest, Mecca received a "frantic phone call" from McClure's sister, who was convinced that McClure had murdered Jones, but had reason to believe that the children were alive and perhaps "tied up or bound someplace." In response, Mecca set up a meeting with McClure, his sister and his mother at the jail, at which McClure's sister "directly confronted [McClure] and begged him to divulge information about the whereabouts of the kids." McClure and his sister discussed how McClure sometimes did "crazy things" when he was using drugs, but McClure strongly maintained his innocence as to Carol Jones' murder and the children's disappearance.

According to his notes, when Mecca next spoke with McClure on Monday, McClure was less adamant in his denial. Mecca described how, when they met on Monday afternoon, McClure began to tell him of his "sexual hallucinations and fantasies" involving young girls and about "other situations that happened in the past ... involving things he would do while under the influence of drugs." "It was at that time," Mecca wrote, "when I realized in my own mind that he had committed the crime and the problem regarding the children intensified." Mecca wrote that he "was extremely agitated over the fact that these children might still be alive."

After a Monday night visit to the crime scene, Mecca returned to the jail to speak with McClure again, at which time he "peeled off most of the outer layers of McClure and realized that there was no doubt in my mind that he had ... killed Carol Jones." McClure told Mecca he wanted to see a psychiatrist, then launched into "bizarre ramblings." "[E]ach time as I would try to leave," Mecca recalled in his notes, "[McClure] would spew out other information, bits about the children, and he would do it in the form of a fantasy." Mecca wrote that he "wanted to learn from him what happened to those children." He told McClure "that we all have hiding places, that we all know when we go hiking or driving or something, we all remember certain back roads and remote places," and that McClure "related to me ... one place where a body might be" and then "described [where] the other body would be located." Mecca wrote that he "wasn't going to push him for anything more," but "when I tried to leave, he said, and he said it tentatively, `would you like me to draw you a map and just give you an idea?' and I said `Yes' and he did[.]" Mecca recorded that "at that time, I felt in my own mind the children were dead, but, of course, I wasn't sure."

Very late on Monday evening, McClure telephoned Mecca at home and said, "I know who did it." Mecca recorded in his notes that the next morning he went to meet with McClure, and asked him about this statement. McClure told Mecca that "Satan killed Carol." When Mecca asked, "What about the kids?" McClure replied, "Jesus saved the kids." Mecca wrote in his notes that this statement "hit me so abruptly, I immediately assumed that if Jesus saved the kids, that the kids are alive[.]" Mecca wrote that he "kind of felt that [McClure] was talking about a sexual thing, but, in any event, I wasn't sure."

Mecca's notes indicate that on Monday, before McClure made the "Jesus saved the kids" comment, and again on Tuesday, immediately after the meeting at which he made that comment, Mecca had conversations with fellow lawyers, seeking advice regarding "the dilemma that [he] faced." After the second of these conversations, which took place Tuesday morning, Mecca arranged for a noon meeting with the undersheriff and the prosecutor. At the meeting, he "mentioned to them that I may have information which would be of interest to the State" and attempted to negotiate a plea. When the prosecutor responded that there would be no deal, Mecca recorded in his notes, "I had made up my mind then that I had to do the correct thing. The only option I had, as far as I was concerned, was to disclose the whereabouts of the body [sic]." (Recall that by the time Mecca wrote these notes, he had learned that the children were dead.) A law enforcement official testified in a federal court deposition that, after both the state bar association and the attorney general "recommended that it would be unwise for Mr. Mecca to provide us information," Mecca "indicated that, even though there might be sanctions, that he still was wanting to provide information that he had regarding the children." Mecca stated that when he spoke with McClure's sister and mother, they were adamant that he do whatever he could to locate the children, and that "[t]hey were still under the impression that one or both of the children were alive, or at least there was a chance they were alive."

Mecca then returned to the jail Tuesday afternoon and, according to his notes, "advised McClure that if there was any possibility that these children were alive, we were obligated to disclose that information in order to prevent, if possible, the occurrence of what could be [the elevation of] an assault to a murder, for instance. I further indicated that if he really requested psychiatric help, to help him deal with his problem, that this perhaps was the first step." "In any event," Mecca recorded in his notes, "he consented." "I arranged to have the information released anonymously to the Sheriff's Department with directions to the bodies." He noted that there was "no provable way to connect" McClure to the information, "but I think it's rather obvious from those in the know, who the information came from."

In the deposition conducted in conjunction with McClure's state habeas proceeding, Mecca gave a similar account of the events surrounding disclosure of the locations of the children. He emphasized that "it all happened relatively quickly" and that there was a public "hysteria about these kids, whether the kids were dead, whether the kids were alive." Mecca reiterated that much of the later conversations with McClure consisted of hypotheticals and fantasies — "like he was playing a game with me" — but that it was clear that McClure wanted to tell him where the children were. Mecca stated in his deposition that "the condition of the children [was] never discussed," but that the insistence by McClure's mother and sister that McClure wouldn't hurt the children put him "in this mode [of thinking] these kids might be alive someplace."

Mecca testified in his deposition that he thought that if the children were alive, it might relieve McClure of additional murder charges, but that the children were his main concern. When asked if he was "primarily concerned with the children's welfare or ... with Mr. McClure's welfare" at the time he disclosed the location of the bodies, Mecca replied, "At that point I was concerned with the children's welfare." When asked if he explained to McClure that "if they were in fact dead, that revealing the location of the bodies would lead to evidence which could implicate Mr. McClure in their murders," Mecca answered: "No. I don't think I had the presence of mind to sit down and analyze every single detail and go over with him, `Geez, you know, if they are really dead, why don't you tell me.'" However, he testified, "McClure knew I thought there [was] a chance those kids were alive."

Mecca testified in the deposition that the plan to place the anonymous telephone call was his, but that McClure knew that he planned to do it, and that, in his late-night call, McClure had made clear that he "absolutely" "wanted to disclose where those kids were." When asked, "Did he give you permission to reveal this information?" Mecca responded, "Oh, yes."

In a 1999 affidavit submitted in conjunction with McClure's federal habeas proceeding, Mecca gave an additional statement regarding McClure's consent: "Mr. McClure did not orally or expressly consent to the disclosure. I inferred consent from the circumstances, specifically, the fact that Mr. McClure called me at home on several occasions with the request that I see him at the jail, and the fact that he drew a map of the location of the bodies of the victim in his own handwriting and gave me the map."

In addition to reviewing Mecca's notes, his state-court deposition testimony, and his federal-court affidavit, the federal district court heard testimony from Mecca at an evidentiary hearing. In this testimony, Mecca emphasized that he generally takes a low-keyed approach to questioning his clients. He also emphasized that McClure was "fully engaged in his defense" and "was running the show." Every time they met or conversed, he said, it was at McClure's request. He said that he and McClure "discussed at various times various methods of what I was going to do with this information." Mecca testified that McClure never expressly said that he consented to the disclosure, and that Mecca never asked for such consent. He confirmed his earlier testimony that he inferred consent, and added for the first time that this inference was based on McClure's nodding, saying "okay," and otherwise manifesting assent. He said this was what he had meant when he had written in his notes that McClure consented. Mecca also reiterated that he never told McClure of the legal risks involved in disclosing the children's locations.

Mecca testified that after the Monday conversation with McClure, "[t]he conclusion I came to was that, without telling me, he told me he had killed three people." But he stated that he did not confirm that conclusion by directly asking McClure if it was the case. Instead, he said, he emphasized to McClure that if there was a chance the children were alive, they needed to save them, and in response McClure "never said they [were] dead." After the "Jesus saved the kids" comment on Tuesday, Mecca testified, "I allowed myself to believe that these kids might somehow be alive." When asked on cross examination whether, at the time he decided to make the anonymous call, he thought there was "a strong possibility the kids still may be alive," Mecca responded that he "felt that it was a possibility. I wouldn't say a strong possibility." One of the reasons he felt this possibility existed, he said, was that his "client had not indicated anything differently." He testified that the possibility of saving his client from additional murder charges "was something that was going through[his] mind" during his decisionmaking. He noted that the weather at that time of year was "warm" and "pleasant," and that if the children had been left in the woods it was possible that the weather would not have contributed to their death.

McClure disagreed with Mecca's account of the events leading up to the anonymous call. In testimony in both the state and federal district court proceedings, he repeatedly insisted that he did not give Mecca permission to disclose any information and that he was reassured that everything he told Mecca would remain confidential. He said Mecca pressured him into disclosing information by setting up the meeting with his sister and mother, and then disseminated that information to his detriment without his knowledge or consent.

McClure testified that Mecca never asked him directly if the children were alive or dead, but that the hypothetical conversations that they had were about where Mecca might find dead "bodies," not live "children." He said his disclosure of those locations was his way of admitting to having killed them. He testified that Mecca never told him that he intended to make an anonymous telephone call.

C. State Court Decision On Post-Conviction Review

In March 1995, an Oregon circuit court denied McClure's petition for post-conviction review, which had been premised in part on a claim that he had been denied effective assistance of counsel when Mecca revealed confidential communications without his permission and without properly advising him of the consequences of such a disclosure. In a two-page denial letter to counsel, the court stated that it "accept[ed] the credibility of the attorney over that of the petitioner's [sic] and f[ound] that petitioner did not disclose to the attorney that the children were dead." The disclosure, therefore, "could have been beneficial to petitioner if, in fact, the children were still alive." The court engaged in no other analysis on the point, but indicated that it was adopting as its own the arguments and conclusions stated in the assistant attorney general's memorandum. That memorandum's conclusions of law included the conclusion that "[p]etitioner received adequate assistance of trial counsel." Among the findings of fact included in the memorandum were the findings that "[t]rial counsel received petitioner's permission to anonymously disclose the whereabouts of the children to the authorities" and that "[b]efore petitioner authorized trial counsel to reveal the childrens' [sic] locations to authorities, trial counsel did not advise petitioner that if authorities located the children, he could be further implicated in the criminal activity and the evidence against him would be stronger."

McClure appealed the denial of post-conviction relief, again raising the ineffective assistance of counsel claim. The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. See McClure v. Maass, 143 Or.App. 360, 922 P.2d 731 (1996); 325 Or. 367, 939 P.2d 44 (1997).

The district court denied McClure's federal habeas petition. The court indicated that it found Mecca "highly credible" and that it disbelieved McClure. Noting that "Mecca admits that he did not ... advise petitioner [of the potential adverse consequences of disclosure]," it concluded that under the circumstances, this failure was "not unreasonable." It found that Mecca "informed petitioner that if the children could be alive, they were obligated to disclose the children's location to prevent further harm to them," that McClure was intelligent and engaged in his defense, that "common sense dictates that petitioner understood the consequences of his actions," and that "Mecca's assumption [that McClure was discussing the location of live children] was not unreasonable under the circumstances." It also held that, based on these circumstances, and on the fact that Mecca had attempted to determine whether the children were alive and McClure had led him to believe they were, "Mecca's failure to ask directly whether the children were dead was not unreasonable."

The federal district court accepted as not clearly erroneous the state habeas court's finding that Mecca received permission to disclose anonymously the whereabouts of the children, and stated that, even if McClure did not consent to disclosure, the disclosure was reasonable in light of the circumstances, including the facts that there was a potential benefit to McClure if the children were alive and that the decision was made "in response to a rapid and extraordinary chain of events as they unfolded." The court found that only McClure knew the true facts as to the children's condition, and that he deliberately withheld them from Mecca. It found that Mecca acted "under extremely difficult circumstances," and that he "investigated to the best of his ability."

The court rejected McClure's argument that Mecca suffered from an unconstitutional conflict of interest. It found that "[d]espite petitioner's arguments to the contrary, no evidence suggests that Mecca collaborated with law enforcement officials. The fact that Mecca may have been motivated, in part, by concern for the children's welfare does not render Mecca's loyalties conflicted; it simply renders him a human being."

McClure timely appealed.

The district court's decision to deny a 28 U.S.C. § 2254 habeas petition is reviewed de novo. See Alvarado v. Hill, 252 F.3d 1066, 1068 (9th Cir.2001). Findings of fact made by the district court are reviewed for clear error. See Zichko v. Idaho, 247 F.3d 1015, 1019 (9th Cir.2001). This clearly erroneous standard is significantly deferential, requiring a "definite and firm conviction that a mistake has been committed" before reversal is warranted. See Easley v. Cromartie, 532 U.S. 234, 242, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001); United States v. Doe, 155 F.3d 1070, 1074 (9th Cir.1998) (en banc). "If the trial court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Phoenix Eng'g & Supply Inc. v. Universal Elec. Co., 104 F.3d 1137, 1141 (9th Cir.1997) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)); see also United States v. Working, 224 F.3d 1093, 1102 (9th Cir.2000) (en banc) ("Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous."). This deference stems from the fact that "findings of fact are made on the basis of evidentiary hearings and usually involve credibility determinations." Rand v. Rowland, 154 F.3d 952, 957 n. 4 (9th Cir.1998) (en banc). These credibility determinations are also given special deference and are likewise reviewed for clear error. See Anderson, 470 U.S. at 573, 105 S.Ct. 1504; United States v. Saya, 247 F.3d 929, 935 (9th Cir.2001).

Under AEDPA, a petitioner must demonstrate that the state court's adjudication of the merits "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). AEDPA provides that state court findings of fact are presumed correct unless rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Zichko, 247 F.3d at 1019. Even though the state court's findings were relatively brief, we review those findings under AEDPA's usual standard. See Downs v. Hoyt, 232 F.3d 1031, 1035 (9th Cir.2000) (giving deference to findings of a state post-conviction court set forth in a short letter opinion coupled with a list of findings of fact).

McClure's single claim is that habeas relief is appropriate because he received ineffective assistance of counsel under the Sixth Amendment. He asserts three independent grounds on which ineffectiveness could be found. The first two are based on alleged breaches of Mecca's professional duty to maintain client confidentiality. McClure argues that this duty was breached both by a failure to obtain informed consent prior to the disclosure of confidential information and by a failure to inquire thoroughly before concluding that disclosure was necessary to prevent the deaths of the children. The third ground is that the primacy of Mecca's concern for the victims constituted a conflict of interest that rendered Mecca's counsel constitutionally ineffective.

The overarching standard for a claim of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in which the Supreme Court emphasized that a successful claim must establish both (1) deficient performance, such that "counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment," and (2) prejudice resulting from that deficiency. Id. at 687, 104 S.Ct. 2052. The Court in Strickland noted that the Sixth Amendment "relies on the legal profession's maintenance of standards sufficient to justify the law's presumption that counsel will fulfill the role in the adversary process that the Amendment envisions," and that "[t]he proper measure of attorney performance" is "reasonableness under prevailing professional norms." Id. at 688, 104 S.Ct. 2052. The Court specified a limited number of "basic duties" that are essential components of reasonable performance by criminal defense counsel, including "a duty of loyalty" and "a duty to avoid conflicts of interest," but held that this list was not exhaustive and that every case will involve an inquiry into "whether counsel's assistance was reasonable considering all the circumstances." Id. "Prevailing norms of practice as reflected in American Bar Association standards and the like ... are guides to determining what is reasonable, but they are only guides." Id.; see also Nix v. Whiteside, 475 U.S. 157, 165, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986) ("Under the Strickland standard, breach of an ethical standard does not necessarily make out a denial of the Sixth Amendment guarantee of assistance of counsel.").

The Court has yet to "define with greater precision the weight to be given to recognized canons of ethics, the standards established by the state in statutes or professional codes, and the Sixth Amendment" in defining the proper scope of and limits on attorney conduct for Strickland purposes. Whiteside, 475 U.S. at 165, 106 S.Ct. 988. It has, however, suggested that when "virtually all of [those] sources speak with one voice" as to what constitutes reasonable attorney performance, departure from ethical canons and ABA guidelines "make[s] out a deprivation of the Sixth Amendment right to counsel." Id. at 166, 171, 106 S.Ct. 988.

We examine each of McClure's three assertions of deficient performance in turn.1

McClure contends that Mecca's disclosure of McClure's confidential statements about the location of the children violated McClure's Sixth Amendment right to effective assistance of counsel. ABA Model Rule of Professional Conduct 1.6 sets forth a widely recognized duty of confidentiality: "A lawyer shall not reveal information relating to representation of a client[.]" Our legal system is premised on the strict adherence to this principle of confidentiality, and "[t]he Supreme Court has long held attorneys to stringent standards of loyalty and fairness with respect to their clients." Damron v. Herzog, 67 F.3d 211, 214 (9th Cir.1995). There are few professional relationships "involving a higher trust and confidence than that of attorney and client," and "few more anxiously guarded by the law, or governed by sterner principles of morality and justice." Id. (quoting Stockton v. Ford, 52 U.S. (11 How.) 232, 13 L.Ed. 676 (1850)).

As critical as this confidential relationship is to our system of justice, the duty to refrain from disclosing information relating to the representation of a client is not absolute. The ABA Model Rule provides a list of well-established exceptions to the general principle of confidentiality, two of which are pertinent to the present case. First, a lawyer may reveal confidential information if "the client consents after consultation." Second, "[a] lawyer may reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm[.]" ABA Model Rule of Professional Conduct 1.6(b)(1) (1983). The relevant provisions of the Oregon Code of Professional Responsibility echo both the general principle of confidentiality and these particular exceptions. See Oregon Code of Prof. Resp. D.R. 4-101.2

The parties, apparently agreeing that these consistently recognized ethical standards provide important guidance as to whether Mecca's counsel was deficient under the first prong of Strickland, focus much of their dispute on the reasonableness of Mecca's actions in light of these exceptions to the general principle of confidentiality. We agree that this approach is proper. The duty of an attorney to keep his or her client's confidences in all but a handful of carefully defined circumstances is so deeply ingrained in our legal system and so uniformly acknowledged as a critical component of reasonable representation by counsel that departure from this rule "make[s] out a deprivation of the Sixth Amendment right to counsel." Whiteside, 475 U.S. at 171, 106 S.Ct. 988. With this uncontested premise as our starting point, we examine whether the circumstances surrounding Mecca's revelation of a confidential client communication excused his disclosure, such that his performance could have been found by the state court and the district court to be constitutionally adequate. Specifically, we look to see if Mecca's client "consent[ed] after consultation" or if Mecca "reasonably believe[d] [the revelation was] necessary to prevent the client from committing a criminal act that [Mecca] believe[d] [was] likely to result in imminent death or substantial bodily harm[.]" We conclude that the first of these exceptions does not apply to justify Mecca's behavior, but that the second does.

McClure argues that Mecca rendered constitutionally ineffective assistance because he breached his duty of confidentiality by not obtaining McClure's informed consent before disclosure. The professional standard that allows disclosure of confidential communications when "the client consents after consultation" has two distinct parts: consent by the client, and consultation by the counsel. Our required deference to both the state court's factual findings and the district court's credibility determination leads us to hold that the first of these elements was met. However, despite this deference, we hold that the second element was not met.

a. Consent

The state court made the following finding: "Trial counsel received petitioner's permission to anonymously disclose the whereabouts of the children to the authorities." AEDPA demands that this finding of consent be presumed correct and accepted as true unless McClure rebuts the presumption with clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1). The district court, whose credibility determinations are given great weight, and whose findings of fact are reviewed only for clear error, explicitly accepted that finding, and stated that it did "not find credible petitioner's assertion that he did not consent to the disclosure of the information contained in the map." It found that McClure "voluntarily drew the map and gave it to Mecca," and that, even in the absence of the words "I consent," Mecca could infer consent from the circumstances and from McClure's conduct. It stated that it found Mecca's testimony "entirely credible and corroborated by his contemporaneous notes which state specifically that petitioner consented to the disclosure."

There is evidence in the record to cast doubt on these consent findings — indeed, enough evidence that if we were sitting as trier of fact, we might find that McClure did not give consent. McClure repeatedly denied that he consented, and certainly would have had good reason not to consent. The state court determination that McClure had consented was made before Mecca clarified that the consent was implied and not express. Moreover, it was based on Mecca's unconditional affirmative response, in his state-court deposition, to the question of whether permission to reveal the information was granted. Only later, in the federal habeas proceeding, did it come to light that Mecca had merely inferred McClure's consent.

Further, Mecca's account of the circumstances from which he inferred McClure's consent changed over the years. His initial account stated that he inferred consent from the fact that McClure called him at home, drew the map, and gave it to him. It is a significant leap to infer McClure's consent to disclose the map to law enforcement authorities from the fact that McClure gave the map to Mecca. Virtually all clients provide information to their attorneys, but they do so assuming that the attorneys will not breach their duty of confidentiality. Further, Mecca's behavior at the time of the disclosure suggested that he thought he lacked the kind of informed consent that would give him the legal authority to act.

However, the findings reached by the state and district courts are not so "[im]plausible" — particularly in light of the district court's credibility determinations — that they produce a "definite and firm conviction that a mistake has been committed." Easley, 532 U.S. at 242, 121 S.Ct. 1452; Doe, 155 F.3d at 1074; Phoenix Eng'g & Supply Inc., 104 F.3d at 1141. The district court believed Mecca's account at the evidentiary hearing, disbelieved McClure's, and found the discrepancies in Mecca's testimony to be "minor." Because there are "two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Working, 224 F.3d at 1102. We therefore hold that McClure gave his consent to the disclosure.

b. Consultation

However, the mere fact of consent is not sufficient to excuse what would otherwise be a breach of the duty of confidentiality. Consent must also be informed. That is, the client can provide valid consent only if there has been appropriate "consultation" with his or her attorney. Mecca's consultation with McClure regarding his consent to disclosure was addressed in the state court and district court findings. Both courts found that Mecca did not advise McClure about the potential harmful consequences of disclosure. The state court found that "[b]efore petitioner authorized trial counsel to reveal the childrens' [sic] locations to authorities, trial counsel did not advise petitioner that if authorities located the children, he could be further implicated in the criminal activity and the evidence against him would be stronger." The district court found that "Mecca admits that he did not ... advise petitioner [of all potential adverse consequences]."

Emphasizing that McClure was "fully engaged" in his defense and that he was told that the obligation to disclose the children's location arose only if the children were alive, the district court held that "[u]nder the circumstances, Mecca's failure to advise petitioner of all possible adverse consequences was not unreasonable." We believe this holding is inconsistent with the consultation requirement because it does not attach sufficient importance to the role that an attorney's advice plays in the attorney-client relationship. It is not enough, as the district court suggests, that McClure "did not dissuade Mecca from his intentions" to share the map with authorities. The onus is not on the client to perceive the legal risks himself and then to dissuade his attorney from a particular course of action. The district court's statement that Mecca was relieved of his duty to counsel his client because "common sense dictate[d] that petitioner understood the consequences of his actions" fails to acknowledge the seriousness of those consequences and the importance of good counsel regarding them. See Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Even in cases in which the negative ramifications seem obvious — for example, when criminal defendants opt for self-representation — we require that a criminal defendant's decision be made on the basis of legal guidance and with full cautionary explanation. See, e.g., Faretta v. California,