258 F. Supp. 3d 151
D.D.C.2017Background
- Six petitioners convicted of conspiracy to commit hostage taking and hostage taking resulting in death filed 28 U.S.C. § 2255 motions alleging ineffective assistance of trial and appellate counsel.
- The government moved for a court order finding the petitioners impliedly waived attorney-client privilege as to those ineffectiveness claims and authorizing former counsel to disclose certain information to the government.
- Three petitioners opposed aspects of the proposed order, arguing (1) disclosures should be subject to preliminary in camera/ex parte court review, (2) the proposed order is overbroad, (3) ex parte communications between government and former counsel should be prohibited, and (4) a protective order should limit downstream use of disclosed materials.
- The court recognized the settled rule that asserting ineffective assistance waives the privilege as to communications necessary to adjudicate the claim, and relied on D.C. Rule of Professional Conduct 1.6(e)(3) and D.C. Bar Ethics Opinion 364 concerning permissible disclosures by former counsel.
- The court declined to require in camera/ex parte pre-disclosure review, held that disclosure is permissive (not mandatory) and must be limited to information “reasonably necessary” to respond to the specific allegations, and permitted ex parte communications under D.C. law and local precedent.
- The court required a protective limitation: disclosed privileged materials may be used only for adjudicating the ineffectiveness claim (including appeals) and cannot be used in subsequent prosecutions, except the government may pursue perjury charges based on independent proof but may not rely on privileged communications for such prosecutions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of waiver when petitioner asserts ineffective assistance | Waiver should be limited to communications specifically necessary; court should supervise disclosures | Implied waiver applies to communications necessary to decide the claim; court should authorize disclosure | Court found waiver on ineffectiveness claims but limited disclosure to information "reasonably necessary" to respond to the allegations |
| Need for in camera/ex parte judicial review before disclosure | Court should require former counsel to submit communications for in camera/ex parte review before disclosure | Procedure is unprecedented in D.C.; D.C. Rule 1.6 permits former counsel to make voluntary disclosures without judicial supervision | Court declined to require preliminary in camera/ex parte review; left disclosure decision to former counsel under D.C. Rule 1.6 |
| Ex parte communications between government and former counsel | Government should be prohibited from ex parte contacts with former counsel | D.C. ethics and local precedent permit extrajudicial disclosures and ex parte communications as reasonably necessary | Court allowed ex parte communications, relying on D.C. Rule 1.6 and local authority rejecting ABA Formal Op. 10-456 |
| Protective order limiting use of disclosed materials | Disclosed privileged materials must be limited to the §2255 proceeding and appeals; forbid use in subsequent prosecutions | Government opposed broad prohibition on downstream use; cited cases to the contrary | Court ordered protective limitation: materials usable only for the ineffectiveness proceeding (including appeals); government may prosecute perjury on independent proof but cannot use privileged disclosures in such prosecutions |
Key Cases Cited
- United States v. Pinson, 584 F.3d 972 (10th Cir.) (recognizes implied waiver of attorney-client privilege when habeas petitioner alleges ineffective assistance)
- Bittaker v. Woodford, 331 F.3d 715 (9th Cir.) (approved protective order limiting use of privileged materials to habeas litigation)
- Lambright v. Ryan, 698 F.3d 808 (9th Cir.) (discusses narrow waiver and district court duty to enter protective order)
- United States v. Nicholson, 611 F.3d 191 (4th Cir.) (applies Bittaker rationale to bar use of privileged material revealed in ineffectiveness proceedings)
- United States v. Suarez, 820 F.2d 1158 (11th Cir.) (held voluntary waiver at hearing permitted subsequent testimony; contrasted by Bittaker)
- Simmons v. United States, 390 U.S. 377 (U.S.) (recognizes that use of compelled testimony in later proceedings can deter assertion of constitutional rights)