Colhoff v. United States of America

Filing 8

ORDER granting 6 Motion for order directing former defense counsel to file an affidavit and Motion for extension. Signed by US Magistrate Judge Veronica L. Duffy on 10/4/2016. (Attachments: # 1 waiver form) (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
LONA LEE COLHOFF,

5:16-CV-05081-KES

Movant,
ORDER
vs.
UNITED STATES OF AMERICA,
Respondent.

This matter is before the court on movant Lona Lee Colhoff’s motion to
vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255. In her
motion, Ms. Colhoff makes a claim for relief based upon the allegedly ineffective
assistance of counsel she received from her former defense counsel, Paul
Winter. See Docket 1 and 5. The United States of America (government) has
requested an order directing former defense counsel to file an affidavit
responding to Ms. Colhoff’s claims of ineffective assistance as set forth in her
motion. See Docket No. 6.
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 “court-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 Ms. Colhoff’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
Paul Winter responding by affidavit to the specific allegations in the motion
concerning his representation of Ms. Colhoff. If Ms. Colhoff opposes the waiver
of the attorney-client privilege as it relates to the specific allegations in her
motion under 28 U.S.C. § 2255, those allegations will be stricken from
Ms. Colhoff’s motion under 28 U.S.C. § 2255. Accordingly,
IT IS HEREBY ORDERED:
1.

The government’s motion (Docket No. 6) directing former defense
counsel to respond is granted as follows:
A.

That the clerk shall send this order and the attached
attorney-client privilege waiver form to Ms. Colhoff;

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B.

That if the attorney-client privilege waiver form is not signed
and returned to the clerk for filing within 21 days, the
allegations of ineffective assistance of counsel will be
stricken from Ms. Colhoff’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 Paul Winter, along
with a copy of this order and Ms. Colhoff’s motion and
supplement pursuant to § 2255 (Docket Nos. 1 & 5).
Attorney Paul Winter shall within 21 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 Ms. Colhoff.

D.

The government shall promptly thereafter serve a copy of
Mr. Winter’s affidavit upon Ms. Colhoff.

2.

The government’s motion for extension of time (Docket No. 6) is
granted; the government shall file its response to Ms. Colhoff’s
motion no later than 30 days after Mr. Winter’s affidavit has been
received.

DATED this 4th day of October, 2016.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge
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