Unpublished Disposition, 859 F.2d 924 (9th Cir. 1988)

MEMORANDUM^** 

Petitioner Steven Prodd appeals pro se the district court's dismissal of his civil rights action under 42 U.S.C. § 1983. Petitioner's complaint alleges numerous constitutional violations all based on his claim that his counsel disclosed confidential communications in a court proceeding. The complaint was dismissed pursuant to Fed. R. Civ. P. 12(b) (6) for failure to state a claim upon which relief could be granted.¹  We affirm.

Petitioner alleges that respondent Roske, his counsel in a prior state criminal proceeding, breached the attorney-client privilege in the course of a state post-conviction relief proceeding; Prodd asserted that his plea was involuntary and that he received ineffective assistance of counsel. The complaint alleges that the breach occurred when Roske submitted an affidavit regarding her conversations with Prodd about the plea negotiations. In addition, the complaint alleges that the breach was the result of a conspiracy between Roske and respondent Ham, the prosecuting attorney in the original state criminal proceeding. As a result of this alleged breach, Prodd claims violations of his rights to due process, equal protection, and effective assistance of counsel, as well as interference with his right to pursue an appeal of his state court conviction through post conviction relief procedures.

A cause of action under section 1983 must allege that the defendant, (1) while acting under the color of state law, (2) deprived the plaintiff of rights secured by the Constitution or laws of the United States. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 624 (9th Cir. 1988); Haywood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc), cert. denied, 478 U.S. 1020, 106 S. Ct. 1333 (1986). Because we find no violation of petitioner's rights, petitioner's claims must fail.

Under some circumstances, governmental interference with the confidentiality of an attorney-client relationship may result in a violation of a defendant's constitutional rights. See Cluchette v. Rushen, 770 F.2d 1469, 1472 (9th Cir. 1985), cert. denied, 475 U.S. 1088, 106 S. Ct. 1474 (1986). Here, however, Prodd himself placed his otherwise privileged communications at issue by asserting ineffective assistance of counsel and contending that his plea was involuntary. In this situation, the nature of the privilege, as well as its waiver, is governed by state law. See Evans v. Raines, 800 F.2d 884, 887 n. 4 (9th Cir. 1986). In Evans, the defendant, who had waived his right to counsel, alleged that he did not know the possible sentences that could be imposed if he was found guilty of his alleged crimes. Id. at 887. Because the defendant placed the otherwise privileged communications at issue, the governing state law allowed the attorneys who represented the defendant prior to his waiver of counsel to testify as to their communications with the defendant regarding possible sentences he might receive if found guilty. Id. at n. 4. Similarly, Roske had the right, if not the duty, under Nevada state law to refute Prodd's allegations of ineffective assistance of counsel.²  See Nev.Rev.Stat. Sec. 49.115 (1987) (exceptions to attorney-client privilege); see also Wingfield v. State of Nevada, 91 Nev. 336, 535 P.2d 1295 (1975) (attorney permitted to testify about discussions with appellant after appellant asserted ineffective assistance of counsel). If Roske were not permitted to testify, defendants such as Prodd would be successful in establishing a "procedural trap play that would block the development of the plain truth...." Evans, at 887 n. 4. (citations omitted). The rule is a longstanding one and was recognized by the Supreme Court as early as 100 years ago. Hunt v. Blackburn, 128 U.S. 464, 70-71 (1888). Thus, because there was no breach of the attorney-client privilege, petitioners claims must fail.³ 

AFFIRMED.