258 F. Supp. 3d 151
D.D.C.2017Background
- Six petitioners (Straker, Pierre, De Four, Clarke, Nixon, Demerieux) convicted of conspiracy to commit hostage-taking and hostage-taking resulting in death; sentenced to life and filed 28 U.S.C. § 2255 ineffective-assistance claims after direct appeal.
- Government moved for a court order finding that petitioners waived attorney-client privilege as to matters necessary to adjudicate the ineffective-assistance claims and authorizing former counsel to disclose certain information to the government.
- Petitioners acknowledged an implied waiver but sought (1) in camera/ex parte court review before disclosure, (2) narrowing of the government’s proposed order as overbroad, (3) prohibition on ex parte communications between government and former counsel, and (4) a protective order limiting future use of disclosed materials.
- The court analyzed governing law, including D.C. Rule of Professional Conduct 1.6(e)(3) and Ethics Opinion 364 (permitting disclosure reasonably necessary to respond to allegations), and relevant precedent from other circuits and D.C. district practice.
- Court held that filing ineffective-assistance claims impliedly waives the attorney-client privilege for communications reasonably necessary to resolve the claim; former counsel may voluntarily disclose information reasonably necessary to respond to the allegations; court declined to require preliminary in camera review or to bar ex parte communications;
- Court agreed to modify the government’s proposed order to (a) incorporate the D.C. Rule 1.6 “reasonably necessary” limitation, and (b) enter a protective-use limitation restricting disclosed material to the § 2255 proceeding and appeals (while preserving prosecution for perjury based on proof from the § 2255 proceeding, but not using privileged communications as evidence in that prosecution).
Issues
| Issue | Petitioners' Argument | Government's Argument | Held |
|---|---|---|---|
| Whether court must conduct in camera/ex parte review of former counsel’s communications before permitting disclosure | Petitioners: premature to authorize disclosure; court should review communications in camera first (cite Johnson) | Government: unprecedented in D.C.; D.C. Rule 1.6 permits former counsel to decide and disclose without court supervision | Denied — court will not require preliminary in camera/ex parte review; disclosure decision rests with former counsel under D.C. Rule 1.6 |
| Scope of waiver/overbreadth of proposed order | Petitioners: order as drafted would compel disclosure and sweep beyond privileged confidences to other protected "secrets" | Government: sought authorization, not compulsion; agreed to narrower language | Modified — court finds waiver limited to communications reasonably necessary to prove/disprove the ineffective-assistance claim (incorporates D.C. Rule 1.6 language) |
| Whether to prohibit ex parte communications between government and former counsel | Petitioners: ex parte interviews should be barred (rely on ABA Formal Op. 10-456 and some out-of-district cases) | Government: D.C. ethics (Ethics Op. 364) permits extrajudicial disclosures; D.C. practice allows ex parte communications | Denied — court will not bar ex parte communications; follows D.C. Ethics Opinion and district precedent |
| Whether to limit future use of disclosed privileged materials (protective order) | Petitioners: disclosures must be restricted to the § 2255 proceeding and appeals to avoid prejudice in future prosecutions | Government: resists undue limitations but does not oppose reasonable protections; requests carve-out permitting perjury prosecution based on proof obtained | Granted in modified form — court orders that disclosed material be limited to litigating the § 2255 claim and appeals; preserves government’s ability to prosecute perjury based on non-privileged proof from the § 2255 proceeding but bars using privileged communications as evidence in such prosecutions |
Key Cases Cited
- United States v. Pinson, 584 F.3d 972 (10th Cir.) (recognizes implied waiver when ineffective-assistance claim is raised)
- Bittaker v. Woodford, 331 F.3d 715 (9th Cir.) (supports protective orders limiting use of defense file to habeas litigation)
- Johnson v. Alabama, 256 F.3d 1156 (11th Cir.) (court utilized in camera review in its particular circumstances)
- Simmons v. United States, 390 U.S. 377 (U.S.) (addresses potential chilling effect when asserting one right may waive another)
- United States v. Suarez, 820 F.2d 1158 (11th Cir.) (holding privilege waived by prior public testimony; discussed and distinguished)
- Lambright v. Ryan, 698 F.3d 808 (9th Cir.) (endorses narrowing waiver and protective limitations)
- United States v. Nicholson, 611 F.3d 191 (4th Cir.) (applies protective-order principles to prevent use of privileged material revealed during ineffectiveness proceedings)