Clark v. United States of America

Filing 15

MEMORANDUM OPINION AND ORDER re: Attorney-Client Privilege Waiver granting 13 Motion; granting 14 Motion to Extend Deadlines. Signed by US Magistrate Judge John E. Simko on 5/20/13. (SLW) (Additional attachment(s) added on 5/20/2013: # 1 Waiver) (SLW).

FILED

UNITED STATES DISTRICT COURT

MAY 2 0 2013

DISTRICT OF SOUTH DAKOTA

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WESTERN DIVISION

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CIV 13-5012
ARLAND CLARK,
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Movant,
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MEMORANDUM OPINION AND
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ORDER RE: ATTORNEY-CLIENT
vs.
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PRIVILEGE WAIVER and
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ORDER FOR EXTENSION
UNITED STATES OF AMERICA,
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Respondent.
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The Government has requested an Order Directing Former 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 former counsel
confronted with a client making ineffective assistance ofcounsel claims, consistent with their ethical
obligations (1) may not disclose information imparted to him or her in confidence without first
obtaining the informed consent of the former client; and (2) may only disclose such information in
"court-supervised testimony." ABA Comm. on Eth. and Profl Responsibility, Formal 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 detennined that the Government cannot respond to the allegations ofineffective assistance
of counsel without Attorney George Grassby responding by affidavit to the specific allegations in
the Motion concerning his representation ofMovant. IfMovant opposes the waiver ofthe 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. 13) directing fonner defense counsel to respond is
granted as follows:
A.

B.

That ifthe Attorney-Client Privilege Waiver fonn 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 fonn to Movant;

That if the Attorney-Client Privilege Waiver fonn is signed and filed, the
Government shall forward a copy of the signed Attorney-Client Privilege
Waiver fonn to Attorney George Grassby, along with a copy of this Order
and Movant's § 2255 Motion. Attorney George Grassbyshall within 14 days
ofreceiving the Attorney-Client Privilege Waiver fonn 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. 14) is granted and the United States
shall file its response on or before July 20,2013.

Dated this ~ day of May, 2013.
BY THE COURT:

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John . imko
Unite
ates Magistrate Judge