Schrader v. United States of America
ORDER granting 4 Motion for Extension of Time to Answer; granting 4 Motion for Order Directing Former Defense Counsel to File Affidavit. Signed by US Magistrate Judge Veronica L. Duffy on 12/21/2016. (Attachments: # 1 waiver form) (CG)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SUSAN MARIE SCHRADER,
UNITED STATES OF AMERICA,
This matter is before the court on movant Susan Marie Schrader’s motion to
vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255. In her
motion, Ms. Schrader makes a claim for relief based upon the allegedly ineffective
assistance of counsel she received from her former defense counsel, Lorie D.
Melone. See Docket 1. The United States of America (government) has requested
an order directing former defense counsel to file an affidavit responding to
Ms. Schrader’s claims of ineffective assistance as set forth in her motion. See
Docket Nos. 4 and 5.
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 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 “courtsupervised 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. Schrader’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 Lorie D.
Melone responding by affidavit to the specific allegations in the motion concerning
her representation of Ms. Schrader. If Ms. Schrader 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 her motion under
28 U.S.C. § 2255. Accordingly,
IT IS HEREBY ORDERED:
The government’s motion (Docket No. 4) directing former defense
counsel to respond is granted as follows:
That the clerk shall send this order and the attached attorneyclient privilege waiver form to Ms. Schrader;
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. Schrader’s motion under 28 U.S.C. § 2255;
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 Lorie D. Melone, along
with a copy of this order and Ms. Schrader’s motion pursuant
to § 2255 (Docket No. 1). Attorney Lorie D. Melone 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 her
representation of Ms. Schrader.
The government shall promptly thereafter serve a copy of
Ms. Melone’s affidavit upon Ms. Schrader.
The government’s motion for extension of time (Docket No. 4) is
granted; the government shall file its response to Ms. Schrader’s
motion no later than 30 days after Ms. Melone’s affidavit has been
DATED this 21st day of December, 2016.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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