Latham v. United States of America

Filing 2

ORDER re 1 Pro Se Motion to Vacate, Set Aside or Correct Sentence (2255) (Criminal Action 15cr3021-LRR-1) filed by Joseph Latham: Respondents Brief due by 12/7/2017. Petitioners Reply Brief due 12/27/2017. Counsel whose representation is chall enged is directed to file with the court an affidavit by 11/7/2017. The clerk's office is directed to provide a copy of this order to the movant's former counsel. After counsel complies with the court's directives, the clerk's office is directed to serve both parties with a copy of the documents that counsel files (see text of Order). Signed by Judge Linda R Reade on 9/28/2017 (copy w/NEF mailed to Plt). (skm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION

JOSEPH LATHAM,
Movant,

No. C17-3066-LRR
No. CR15-3021-LRR

vs.
UNITED STATES OF AMERICA.

ORDER

This matter appears before the court on Joseph Latham’s motion to vacate, set aside
or correct sentence pursuant to 28 U.S.C. § 2255 (civil docket no. 1). Joseph Latham
(“the movant”) filed such motion on August 1, 2017.
Having conducted its preliminary consideration of the movant’s § 2255 motion
pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, the court
concludes that the movant’s claims should be briefed. The parties are DIRECTED to
respond in the following manner:
1. The government is DIRECTED to file a brief in response
to the movant’s § 2255 motion on or before December 7,
2017. The government may attach relevant materials to its
brief.
2. If he so chooses, the movant is DIRECTED to file a brief
in reply to the government’s response and/or additional
materials related to his § 2255 motion on or before December
27, 2017.
The movant raises at least one claim of ineffective assistance of counsel. A claim
of ineffective assistance of counsel waives the attorney-client privilege as to
communications with the attorney that are necessary to prove or disprove the claim. See
Tasby v. United States, 504 F.2d 332, 336 (8th Cir. 1974) (“When a client calls into public

question the competence of his attorney, the privilege is waived.”); see also United States
v. Pinson, 584 F.3d 972, 978 (10th Cir. 2009) (citing Tasby, 504 F.2d at 336); United
States v. Davis, 583 F.3d 1081, 1090 (8th Cir. 2009) (making clear that attorney-client
privilege cannot be used as both a sword and a shield); In re Lott, 424 F.3d 446, 453 (6th
Cir. 2005) (citing Tasby, 504 F.2d at 336); Bittaker v. Woodford, 331 F.3d 715, 720 (9th
Cir. 2003) (addressing scope of waiver); United States v. Ballard, 779 F.2d 287, 292 (5th
Cir. 1986) (permitting an attorney to reveal otherwise privileged communications when
defending himself against charges of improper conduct); Schwimmer v. United States, 232
F.2d 855, 863 (8th Cir. 1956) (indicating that waiver may be express or implied).
Therefore, counsel whose representation is challenged is DIRECTED to file with the court
an affidavit that responds only to the movant’s specific allegation(s) of ineffective
assistance of counsel. Such affidavit must contain all of the information that counsel
reasonably believes is necessary to respond to the movant’s specific allegation(s). In
addition, counsel is DIRECTED to attach to, or include with, his or her affidavit all of the
documents that he or she reasonably believes are necessary to respond to the movant’s
allegation(s). This court-supervised response to the movant’s allegation(s) must be filed
with the court on or before November 7, 2017. The clerk’s office is DIRECTED to
provide a copy of this order to the movant’s former counsel.1 After counsel complies with

1

The American Bar Association provides guidance as to when an attorney may
reveal information that relates to the representation of a client who alleges ineffective
assistance of counsel. Specifically, the ABA, in relevant part, states:
[a] lawyer may reveal information relating to the
representation of a client to the extent the lawyer reasonably
believes necessary [. . .] to respond to allegations in any
proceeding concerning the lawyer’s representation of the client
[or] to comply with other law or a court order.
ABA Model Rules of Prof’l Conduct R. 1.6(b)(5)-(6); see also ABA Model Rules of Prof’l
Conduct R. 1.6 cmt. 12-15 (addressing disclosures that are adverse to the client).
Concerning Model Rule 1.6, counsel is advised to read ABA Formal Opinion 10-456,
(continued...)
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the court’s directives, the clerk’s office is DIRECTED to serve both parties with a copy
of the documents that counsel files. If the movant objects to counsel responding as ordered
herein, the movant is DIRECTED to notify the court of the objection and the basis for the
objection within 21 days of the date of this order. Upon receipt of an objection by the
movant, the court will notify the parties and counsel that they need not take further action
until they are directed to do so by the court.
IT IS SO ORDERED.
DATED this 28th day of September, 2017.

1

(...continued)
Disclosure of Information to Prosecutor When Lawyer’s Former Client Brings Ineffective
Assistance of Counsel Claim. See ABA Comm. on Ethics & Prof’l Responsibility, Formal
Op. 10-456 (2010).
It may be accessed at the following website:
http://www.americanbar.org/content/dam/aba/migrated/2011_build/professional_respon
sibility/ethics_opinion_10_456.authcheckdam.pdf. Alternatively, such opinion may be
accessed by visiting the ABA’s website and typing into the search feature “10-456”. If
counsel concludes that he or she cannot comply with this order without violating an
attorney-client privilege or if counsel concludes that he or she cannot reasonably determine
the scope of the waiver of the attorney-client privilege, counsel is directed to file a
response, in camera with a request for a protective order if necessary, that specifically
states the reasons for his or her conclusion. To comply with this order, counsel must file
either an affidavit, a response or, if appropriate, a combination of the two by the required
date.
3