Sippola v. United States of America

Filing 20

MEMORANDUM ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

SCOTT EDWARD SIPPOLA,
Petitioner
v.

Case No. 2:12-cv-421
HON. R. ALLAN EDGAR

UNITED STATES OF AMERICA,
Respondent.
____________________________________/
MEMORANDUM
Defendant’s former attorney, Sarah Henderson, has filed, through her attorney a
Motion for Protective Order (Doc. #19). This is a habeas case filed by Ms. Henderson’s
former client, Scott Sippola. Ms. Henderson represented Mr. Sippola in a criminal case
wherein Mr. Sippola went to trial and was convicted of Conspiracy to Extort Money By Use of
Interstate Communications, Transmission of Interstate Communication of Threat to Injure the
Reputation of Another With Intent to Extort Money, and Interstate Communication of Threat
to Injure the Reputation of Another With Intent to Extort Money. He is currently serving a
sentence as a consequence.
Mr. Sippola has filed a petition for habeas corpus wherein he makes a claim that he
received ineffective assistance of counsel from Ms. Henderson. His claim appears to arise
out of alleged legal advice she provided Sippola regarding plea negotiations. This is the only
claim that remains in the case subsequent to this Court’s Memorandum and Order of July 25,
2013 (Doc. #13).
Ms. Henderson is concerned about her attorney-client privilege obligations concerning
testimony about her discussions with Mr. Sippola. These concerns are without foundation.

As this Court has already said, (Doc. #7) when Mr. Sippola asserted his Sixth Amendment
claim of ineffective assistance of counsel, he waived his attorney-client privilege with respect
to all matters relevant to that claim. This waiver applies to any written and oral communication
flowing between Sippola and Ms. Henderson necessary or relevant to proving or disproving
the ineffective assistance of counsel claim. This waiver is amply recognized in caselaw. See
In re Lott, 424 F.3d 446, 453 (6th Cir. 2005); Zaragosa-Tapia v. United States, 2013 WL
1615556 (S.D. Ohio Apr. 15, 2013); United States v. Clark, 2013 WL 74616 (W.D. Mich. Jan.
7, 2013) (Neff, J.); United States v. Lossia, 2008 WL 192274 (E.D. Mich. Jan. 23, 2008). The
waiver is also, as Ms. Henderson’s attorney points out, recognized in Rule 1.6 of the Michigan
Rules of Professional Conduct.
It is also worth pointing out that the attorney-client privilege belongs to the client (Mr.
Sippola) not the attorney (Ms. Henderson). People v. Waclawski, 286 Mich. App. 634, 694
(2009), citing People v. Bortnik, 28 Mich. App. 198, 201 (1970); Glidden Co. v. Jandernoa, 173
F.R.D. 459, 475 (W.D. Mich. 1997) (Scoville, M.J.); Liberty Life Assur. Co. of Boston v. Smith,
2010 WL 3064190, at *3 (E.D. Tenn. Aug. 3, 2010) (Carter, M.J.) (internal citations omitted).
Since the Court is perfectly capable of determining what evidence is and is not relevant
to the ineffective assistance claim, there is no reason to take Ms. Henderson’s testimony in
a closed session of the Court, as she suggests through counsel. Client confidences, the
disclosure of which have not been waived, will be duly protected. A closed hearing is neither
necessary nor desirable.
ENTERED.
Dated:

9/23/2013

/s/ R. Allan Edgar
R. ALLAN EDGAR
UNITED STATES DISTRICT JUDGE

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