Thompson v. United States of America

Filing 71

ORDER Requiring USA to seek waiver of attorney-client privilege from Scott Thompson regarding his claims of ineffective assistance of counsel. Signed by US Magistrate Judge Veronica L. Duffy on 09/25/17. (Attachments: # 1 Attachment)(Duffy, Veronica)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
SCOTT THOMPSON,
Movant,
vs.

5:16-CV-5035-JLV
MEMORANDUM OPINION AND
ORDER RE: ATTORNEY-CLIENT
PRIVILEGE WAIVER

UNITED STATES OF AMERICA,
Respondent.
The Government has requested an Order Directing Former Defense
Counsel to Respond to Movant=s Claims of Ineffective Assistance set forth in the
Movant=s Motion under 28 U.S.C. ' 2255.
The Eighth Circuit Court of Appeals has recognized that the attorneyclient 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 of
counsel 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 Acourt-supervised testimony.@ ABA Comm. on Eth. and Prof'l
Responsibility, Formal Op. 10-456 (July 14, 2010).
In consideration of the 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 of ineffective assistance of counsel without attorney
Brett Poppen 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. 69) directing former defense
counsel to respond is granted as follows:
A.

That counsel for the government shall hand-deliver or email
the attached waiver form to Mr. Thompson for his immediate
consideration.

B.

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

C.

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 Brett
Poppen, along with a copy of this Order and Movant=s ' 2255
Motion. Attorney Brett Poppen shall within 14 days of
receiving the Attorney-Client Privilege Waiver form provide
and file with the Clerk an affidavit responding to the specific
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allegations in the ' 2255 Motion concerning his
representation of Movant.
D.

The Government shall promptly thereafter serve a copy of
Mr. Poppen’s affidavit upon Movant.

Dated this 25th day of September, 2017.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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