Diaz-Pellegaud v. United States of America

Filing 10

MEMORANDUM OPINION AND ORDER re Attorney-Client Privege Matter, granting 9 MOTION for Order Directing Former Defense Counsel to Respond to Claims of Ineffective Assistance, and Motion for Extension of Time to Answer Motion Under 28 USC 2255. Signed by US Magistrate Judge John E. Simko on 6/13/13. (CMS) Modified on text 6/13/2013 (CMS).

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

PILED
JUN 13 2013

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CLERK

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CIV 13-4043
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Movant,
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MEMORANDUM OPINION AND
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vs.
ORDER RE: ATTORNEY-CLIENT
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PRIVILEGE WAIVER and
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UNITED STATES OF AMERICA,
ORDER FOR EXTENSION
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Respondent.
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JESUS FABEL DIAZ-PELLEGAUD,

The Government has requested an Order Directing Fonner Defense Counsel to Respond to
Defendant's Claims of Ineffective Assistance set forth in the Movant's Motion under 28 U.S.c.
§ 2255. Movant was afforded an opportunity to respond but did not file a response.

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 ofcounsel 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 Profl Responsibility, Fonnal Op. 10-456
(July 14, 2010).

In consideration ofthe allegations set forth in Movant's Motion under 28 U.S.C. § 2255 this
Court has determined that the Government cannot respond to the allegations ofineffective assistance
of counsel without Attorney Stephen McCaughey responding by affidavit to the specific allegations
in the Motion concerning his representation of Movant. If Movant opposes the waiver of the
Attorney-Client privilege as it relates to the specific allegations in his Motion under 28 U.S.c.
§ 2255, those allegations will be stricken from Movant's Motion under 28 U.S.C. § 2255.

Accordingly,
IT IS ORDERED:
1.

The Respondent's Motion (Doc. 9) directing former defense counsel to respond is
granted as follows:
A.

B.

That ifthe Attorney-Client Privilege Waiver form is not signed and returned
to the Clerk for filing within 14 days, the allegations ofineffective assistance
of counsel will be stricken from Movant's Motion under 28 U.S.C. § 2255;

C.

2.

That the Clerk shall send this Order and the attached Attorney-Client
Privilege Waiver form to Movant;

That 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 Stephen McCaughey, along with a copy of this
Order and Movant's § 2255 Motion. Attorney Stephen McCaughey shall
within 14 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 his representation of Movant.

The Respondent's Motion for Extension (Doc. 9) is granted and the United States
shall file its response no later than 30 days after Mr. McCaughey's affidavit has been
received.

Dated this

--t..1- day of June, 2013.
BY THE COURT:

...
John . imko
Sates Magistrate Judge

ATTORNEY -CLIENT PRIVILEGE WAIVER

You have made a motion under 28 U.S.C. § 2255 alleging that you received ineffective assistance
from your former lawyer, Stephen McCaughey. The Court has reviewed your motion and determined
that an affidavit from your former lawyer concerning the specific allegations in your motion is
necessary to in order to evaluate your motion.
The American Bar Association advises your attorney to obtain your consent before disclosing
confidential communications between you and him that may bear on the disposition of your motion.
This is a professional ethics requirement. As a matter oflaw, you have waived the attorney-client
privilege regarding the allegations of ineffective assistance of counsel in your motion. This means
that if you wish to proceed on your claims of ineffective assistance, you must allow your
communications with your former counsel concerning the specific claims to be disclosed to the
Government and to the Court.
If you wish to proceed with your claims of ineffective assistance of counsel as set forth in your
Section 2255 motion, you must sign this form and return it to the Court. The form authorizes your
attorney to disclose confidential communications only to the extent necessary to address the
ineffective assistance of counsel claims that are raised by your 28 U.S.c. § 2255 motion.
You should know that ifyou sign this authorization, you run the risk that your attorney will contradict
your statements about his representation of you. However, you should also know that the Court will
strike the ineffective assistance ofcounsel claims in your motion ifyou do not authorize your attorney
to give an affidavit in response to the ineffective assistance claims.
You must return this form within fourteen (14) days from the date of the Court's order directing the
clerk to mail this Waiver to you or the allegations ofineffective assistance ofcounsel will be stricken
from your motion under 28 U.S.C. § 2255.
AUTHORIZATION
I have read the document entitled "Attorney-Client Privilege Waiver." I hereby authorize my former
attorney, Stephen McCaughey, to disclose confidential communications only to the extent necessary
to address the ineffective assistance of counsel claims that are raised by my motion under 28 U.S.C.
§ 2255.

Dated this _ _ day of _ _ _ _ _ _, 2013.

Movant Jesus Fabel Diaz-Pellegaud