Michael Seibel v. USA

Filing 12

MEMORANDUM OPINION AND ORDER RE: ATTORNEY-CLIENT PRIVILEGE WAIVER AND OERDER FOR EXTENSION granting 10 Motion for extension. Signed by U.S. District Judge Charles B. Kornmann on 12/01/2014. (Attachments: # 1 Attorney-Client Privilege Waiver) (SAT) (Attachment 1 replaced on 12/2/2014) (SAT).

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION

PILED

DEC 0 , 201~

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CIY 14-1022-CBK

MICHAEL SEIBEL,

Petitioner,
vs.

MEMORANDUM OPINION

AND ORDER RE: ATTORNEY­

CLIENT PRIVILEGE WAIVER

AND ORDER FOR EXTENSION

UNITED STATES OF AMERICA,

Respondent.

The Government has requested an order directing fonner defense counsel to respond to
petitioner's claims of ineffective assistance set forth in petitioner's motion to vacate 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 fonner
counsel confronted with a client making ineffective assistance of counsel claims, consistent with
their ethical obligations (1) may not disclose infonnation imparted to him or her in confidence
without first obtaining the infonned consent of the fonner client; and (2) may only disclose such
infonnation in "court-supervised testimony." ABA Comm. on Eth. and ProrI Responsibility,
FonnalOp. 10-456 (July 14,2010).
In consideration of the allegations set forth in petitioner's motion to vacate under 28
U.S.C. § 2255, this Court has detennined that the government cannot respond to the allegations
of ineffective assistance of counsel without Attorney Pat Carlson responding by affidavit to the
specific allegations in the motion concerning her representation of petitioner. If petitioner
opposes the waiver of the Attorney-Client privilege as it relates to the specific allegations in his

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motion to vacate under 28 U .S.C. § 2255, the ineffective assistance allegations will be stricken
from petitioner's motion to vacate under 28 U.S.C. § 2255. Accordingly,
IT IS ORDERED:

1. The Government's motion, Doc. 10, is granted.
2. The Clerk shall forthwith send a copy of this order and the attached Attorney-Client
Privilege Waiver form to petitioner.
3. If the Attorney-Client Privilege Waiver form is not signed and returned to the Clerk
for filing within 20 days after receipt by petitioner, the allegations of ineffective assistance of
counsel will be stricken from petitioner's motion to vacate under 28 U.S.C. § 2255.
4. 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 Pat Carlson,
along with a copy of this Order, petitioner's motion to vacate, Doc. 1, memorandum in support
of motion to vacate, Doc. 2, and the Court's Order to answer, Doc. 9. Attorney Carlson shall
within 30 days of receiving the Attorney-Client Privilege Waiver form provide and file with the
Clerk an affidavit responding to the specific allegations in the § 2255 motion concerning her
representation of petitioner.
5. The United States shall promptly thereafter serve a copy of the affidavit upon
petitioner.
6. The respondent's motion for extension of time, Doc. 10, is granted. The United States
shall file its response within 30 days after receiving the affidavit.
Dated this /

~ay of December, 2014.

BY THE COURT:

~M~~~

U.S. DistrictJudge

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