Brown v. United States of America, No. 4:2011cv04151 - Document 19 (D.S.D. 2012)
Court Description: MEMORANDUM OPINION AND ORDER re Attorney-Client Privilege waiver. Signed by U. S. District Judge Lawrence L. Piersol on 2/16/12. (Attachments: # 1 Attorney-Client Privilege Waiver (unsigned))(DJP)
Download PDF
<![CDATA[
FILED UNITED STATES DISTRICT COURT FEB 16 2012 DISTRICT OF SOUTH DAKOTA ~~ SOUTHERN DIVISION *********** **************************************** * TYLER BROWN, CIV 11-4151 * * Petitioner, * MEMORANDUM OPINION AND * ORDER RE: ATTORNEY -CLIENT vs. * PRIVILEGE WAIVER * UNITED STATES OF AMERICA, * * Respondent. * * ************ *************************************** After the Government requested an Order Directing Fonner Defense Counsel to Respond to Defendant's Claims of Ineffective Assistance set forth in the Petitioner's Motion under 28 U.S.c. § 2255 (Doc. 15), this Court issued a Memorandum Opinion and Order allowing either Mr. Khoroosi or Petitioner to submit a resistance to an Order directing Mr. Khoroosi to respond to the specific allegations concerning his representation of Petitioner by affidavit. Doc. 17. Petitioner filed a resistance to his fonner counsel submitting an affidavit responding to the specific allegations of ineffective assistance of counsel set forth in Petitioner's Motion under 28 U .S.c. § 2255. Doc. 18. The Eighth Circuit Court ofAppeals has recognized that the attorney-client privilege may be impliedly waived when a client attacks his attorney's competence and raises the issue of ineffectiveness or incompetence ofcounsel. See Tasbyv. United States, 504 F.2d 332 (8th Cir. 1974). ABA Model Rule of Professional Conduct 1.6 also recognizes that a disclosure may be impliedly authorized under certain circumstances including when a lawyer must respond to allegations in any proceeding concerning the lawyer's representation ofhis or her client. The American Bar Association has issued an opinion advising that fonner counsel confronted with a client making ineffective assistance ofcounsel claims, consistent with their ethical obligations (I) may not disclose information imparted to him or her in confidence without first obtaining the infonned consent of the fonner client; and (2) may only disclose such infonnation in "court-supervised proceedings." ABA Comm. on Eth. and Profl Responsibility, FonnalOp. 10-456 (July 14, 2010). In consideration of the allegations set forth in Petitioner's Motion under 28 U.S.C. § 2255. motion, this Court has determined that the Government cannot respond to the allegations of ineffective assistance of counsel without Mr. Khoroosi responding by affidavit to the specific allegations in the Motion concerning his representation of Petitioner. The Court has further determined that if Petitioner continues to oppose the waiver of the Attorney-Client privilege as it relates to the specific allegations in his Motion under 28 U.S.C. § 2255, those allegations will be stricken from Petitioner's Motion under 28 U.S.C. § 2255. Accordingly, IT IS ORDERED: 1. That the Clerk shall send this Order and the attached Attorney-Client Privilege Waiver form to Petitioner: 2. That ifthe Attorney-Client Privilege Waiver form is not signed and returned to this Court within 30 days, the allegations of ineffective assistance of counsel will be stricken from Petitioner's Motion under 28 U.S.C. § 2255. Dated this 16th day of February, 2012. BY THE COURT: {bW.IlA4l~~ ATTEST: JOSEPH ~' BY: g.; awrence L. Piersol United States District Judge ~y DEPUTY 2
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
