Ixtlilco-Hernandez v. United States of America, No. 5:2012cv05020 - Document 15 (D.S.D. 2012)
Court Description: MEMORANDUM OPINION AND ORDER granting 14 Motion re: Attorney-Client Privilege Waiver. Signed by US Magistrate Judge John E. Simko on 12/28/12. (Attachments: # 1 Attorney-Client Privilege Waiver) (SLW)
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FILED DEC 28 2012 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA ~4,;; WESTERN DIVISION *********** **************************************** ARMANDO IXTLILCO-HERNANDEZ, Movant, vs. UNITED STATES OF AMERICA, Respondent. * * * * * * * * * * * CIV 12-5020 MEMORANDUM OPINION AND ORDER RE: ATTORNEY-CLIENT PRIVILEGE WAIVER ************ *************************************** The Government has requested an Order Directing Former Defense Counsel to Respond to Defendant's Claims of Ineffective Assistance set forth in the Movant's Motion under 28 U.S.c. § 2255. The Eighth Circuit Court of Appeals 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 of counsel. See Tasby v. 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 of his or her client. The American Bar Association, however, has issued an opinion advising that former counsel confronted with a client making ineffective assistance ofcounsel claims, consistent with their ethical obligations (1) may not disclose information imparted to him or her in confidence without first obtaining the informed consent of the former client; and (2) may only disclose such information in "court-supervised testimony." ABA Comm. on Eth. and Profl Responsibility, Formal Op. 10-456 (July 14, 2010). In consideration ofthe allegations set forth in Movant's Motion under 28 U.S.c. § 2255 this Court has determined that the Government cannot respond to the allegations ofineffective assistance ofcounsel without Attorney Steven M. Christensen responding by affidavit to the specific allegations in the Motion concerning his representation of Movant. If Movant opposes 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 Movant's Motion under 28 U.S.C. § 2255. Accordingly, IT IS ORDERED: 1. That the Government's Motion (Doc. 14) is GRANTED and the Clerk shall send this Order and the attached Attorney-Client Privilege Waiver form to Movant; 2. That if the Attorney-Client Privilege Waiver form is not signed and returned to the Clerk for filing within 30 days, the allegations of ineffective assistance of counsel will be stricken from Movant's Motion under 28 U.S.C. § 2255; 3. That if the Attorney-Client Privilege Waiver form is signed and filed, the Government shall forward a copy of the signed Attorney-Client Privilege Waiver form to Attorney Steven M. Christensen, along with a copy of this Order and Movant's § 2255 Motion. Attorney Christensen shall within 10 days ofreceiving the Attorney-Client Privilege Waiver form provide and file with the Clerk an affidavit responding to the specific allegations in the § 2255 Motion concerning his representation of Movant. Dated this)!I day of December, 2012. BY THE COURT: Jo . Simko States Magistrate Judge
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