UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA HUNTINGTON
ROBIN EARL SLATER,
Movant,
v. Case No. 3:15-cv-15634 Case No. 3:12-cr-00121
UNITED STATES OF AMERICA,
Respondent.
O R D E R
Pending before the Court is Movant's Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255 (ECF No. 160, “Motion”) and the Movant’s Motion for Leave to Amend 2255 Motion (ECF No. 170). Pursuant to the provisions of Rule 5, Rules Governing Section 2255 Proceedings, it is hereby ORDERED that the United States shall file its Answer to the Movant’s Section 2255 Motion (ECF No. 160) and shall also respond to the Movant’s Motion for Leave to Amend his Section 2255 Motion (ECF No. 170) on or before July 6, 2018. Movant’s section 2255 motion and motion to amend contain numerous grounds for relief alleging ineffective assistance by his court-appointed trial counsel, Lex A. Coleman and/or Sebastian M. Joy.1 It is hereby ORDERED that Mr. Coleman and Mr. Joy shall provide an affidavit responding only to Movant’s specific claims of ineffective
1 Upon initial review of Movant’s filings, the undersigned does not read any of his grounds for relief to be implicating the conduct of Troy N. Giatras, who represented Movant only on his direct appeal. Accordingly, the undersigned has not ordered that Mr. Giatras submit an affidavit. assistance of counsel by May 30, 2018. The affidavit shall include all of the information Movant’s former counsel believes is necessary to fully respond to the claims and shall include, as attachments thereto, copies of any documents from his file that he believes to be relevant and necessary to a determination of the specific claims of ineffective assistance of counsel raised by Movant in his section 2255 motion and the motion to
amend. To the extent that any documents produced address other aspects of such attorney’s representation of Movant, the attorney may redact them. In preparing the affidavit and attachments, Movant’s former counsel should disclose only that information reasonably necessary to ensure the fairness of these proceedings. In issuing this Order, the Court takes into account the professional and ethical responsibilities of Movant’s former counsel, as well as the obligation of the Court to ensure a fair, orderly, and efficient judicial proceeding. Obviously, Movant’s former counsel has a basic duty under any jurisdiction’s standards of professional conduct to protect the Movant’s attorney-client privilege. Rule 83.7 of the Local Rules of this District provides that: In all appearances, actions and proceedings within the jurisdiction of this court, attorneys shall conduct themselves in accordance with the Rules of Professional Conduct and the Standards of Professional Conduct promulgated and adopted by the Supreme Court of Appeals of West Virginia, and the Model Rules of Professional Conduct published by the American Bar Association.
Both the Rules of Professional Conduct promulgated by the Supreme Court of Appeals of West Virginia and the American Bar Association’s (“ABA”) Model Rules of Professional Conduct address the confidentiality of information shared between an attorney and his or her client. See West Virginia Rules of Professional Conduct 1.6 and 1.9(b); Model Rules 1.6 and 1.9(c). These rules substantially limit the circumstances under which an attorney may reveal privileged communications without an express and informed waiver of the privilege by the client. Moreover, on July 14, 2010, the ABA’s Committee on Ethics and Professional Responsibility issued Formal Opinion 10-456, entitled “Disclosure of Information to Prosecutor When Lawyer’s Former Client Brings Ineffective Assistance of Counsel Claim.”
Although this opinion is not binding on the court, see, e.g., Jones v. United States, 2012 WL 484663 *2 (E.D. Mo. Feb. 14, 2102); Employer’s Reinsurance Corp. v. Clarendon Nat. Ins. Co., 213 F.R.D. 422, 430 (D. Kan 2003), it provides a reasoned discussion of the competing interests that arise in the context of an ineffective assistance of counsel claim and their impact on the continued confidentiality of attorney-client communications. In summary, the ABA acknowledges in the opinion that “an ineffective assistance of counsel claim ordinarily waives the attorney-client privilege with regard to some otherwise privileged information,” but cautions that this waiver does not operate to fully release an attorney from his or her obligation to keep client information confidential unless the client gives informed consent for disclosure or disclosure is sanctioned by an exception contained in Model Rule 1.6. After examining the various exceptions contained
in Model Rule 1.6, the ABA concludes that disclosure may be justified in certain circumstances; however, any such disclosure should be limited to that which the attorney believes is reasonably necessary and should be confined to “court-supervised” proceedings, rather than ex parte meetings with the non-client party. Upon examining the provisions of West Virginia’s Rule of Professional Conduct 1.6, the undersigned notes that Rule 1.6(b)(2) permits a lawyer to “reveal such information [relating to the representation of a client] to the extent the lawyer reasonably believes necessary ... to respond to allegations in any proceeding concerning the lawyer’s representation of a client.” In the Comment that follows the Rule, the Supreme Court of Appeals instructs the lawyer to “make every effort practicable to avoid unnecessary disclosure of information relating to a representation, to limit disclosure to those having the need to know it, and to obtain protective orders or make other arrangements minimizing the risk of disclosure.” Ultimately, however, a lawyer must comply with orders
of a court of competent jurisdiction, which require the lawyer to disclose information about the client. Similarly, Model Rule 1.6(b)(5) authorizes an attorney to reveal information regarding the representation of a client to the extent the lawyer reasonably believes necessary “to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” Furthermore, Model Rule 1.6(b)(6) explicitly states that the lawyer may disclose such information “to comply with other law or a court order.” In view of these provisions, the Court finds that Movant’s former counsel may, without violating the applicable Rules of Professional Conduct, disclose information in this proceeding regarding his communications with Movant to the extent reasonably necessary to comply with an order of this Court or to respond to the allegations of ineffective representation. Having addressed the professional responsibilities of Movant’s former counsel, the
Court turns to its authority and obligations. As previously noted, federal courts have long held that when a “habeas petitioner raises a claim of ineffective assistance of counsel, he waives the attorney-client privilege as to all communications with his allegedly ineffective lawyer.” Bittaker v. Woodford, 331 F.3d 715, 716 (9th Cir. 2003).2 Subsequent to the opinion in Bittaker, Rule 502 of the Federal Rules of Evidence was enacted to explicitly
2 See also United States v. Pinson, 584 F.3d 972 (10th Cir. 2009); In re Lott, 424 F.3d 446 (6th Cir. 2005); Johnson v.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA HUNTINGTON
ROBIN EARL SLATER,
Movant,
v. Case No. 3:15-cv-15634 Case No. 3:12-cr-00121
UNITED STATES OF AMERICA,
Respondent.
O R D E R
Pending before the Court is Movant's Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255 (ECF No. 160, “Motion”) and the Movant’s Motion for Leave to Amend 2255 Motion (ECF No. 170). Pursuant to the provisions of Rule 5, Rules Governing Section 2255 Proceedings, it is hereby ORDERED that the United States shall file its Answer to the Movant’s Section 2255 Motion (ECF No. 160) and shall also respond to the Movant’s Motion for Leave to Amend his Section 2255 Motion (ECF No. 170) on or before July 6, 2018. Movant’s section 2255 motion and motion to amend contain numerous grounds for relief alleging ineffective assistance by his court-appointed trial counsel, Lex A. Coleman and/or Sebastian M. Joy.1 It is hereby ORDERED that Mr. Coleman and Mr. Joy shall provide an affidavit responding only to Movant’s specific claims of ineffective
1 Upon initial review of Movant’s filings, the undersigned does not read any of his grounds for relief to be implicating the conduct of Troy N. Giatras, who represented Movant only on his direct appeal. Accordingly, the undersigned has not ordered that Mr. Giatras submit an affidavit. assistance of counsel by May 30, 2018. The affidavit shall include all of the information Movant’s former counsel believes is necessary to fully respond to the claims and shall include, as attachments thereto, copies of any documents from his file that he believes to be relevant and necessary to a determination of the specific claims of ineffective assistance of counsel raised by Movant in his section 2255 motion and the motion to
amend. To the extent that any documents produced address other aspects of such attorney’s representation of Movant, the attorney may redact them. In preparing the affidavit and attachments, Movant’s former counsel should disclose only that information reasonably necessary to ensure the fairness of these proceedings. In issuing this Order, the Court takes into account the professional and ethical responsibilities of Movant’s former counsel, as well as the obligation of the Court to ensure a fair, orderly, and efficient judicial proceeding. Obviously, Movant’s former counsel has a basic duty under any jurisdiction’s standards of professional conduct to protect the Movant’s attorney-client privilege. Rule 83.7 of the Local Rules of this District provides that: In all appearances, actions and proceedings within the jurisdiction of this court, attorneys shall conduct themselves in accordance with the Rules of Professional Conduct and the Standards of Professional Conduct promulgated and adopted by the Supreme Court of Appeals of West Virginia, and the Model Rules of Professional Conduct published by the American Bar Association.
Both the Rules of Professional Conduct promulgated by the Supreme Court of Appeals of West Virginia and the American Bar Association’s (“ABA”) Model Rules of Professional Conduct address the confidentiality of information shared between an attorney and his or her client. See West Virginia Rules of Professional Conduct 1.6 and 1.9(b); Model Rules 1.6 and 1.9(c). These rules substantially limit the circumstances under which an attorney may reveal privileged communications without an express and informed waiver of the privilege by the client. Moreover, on July 14, 2010, the ABA’s Committee on Ethics and Professional Responsibility issued Formal Opinion 10-456, entitled “Disclosure of Information to Prosecutor When Lawyer’s Former Client Brings Ineffective Assistance of Counsel Claim.”
Although this opinion is not binding on the court, see, e.g., Jones v. United States, 2012 WL 484663 *2 (E.D. Mo. Feb. 14, 2102); Employer’s Reinsurance Corp. v. Clarendon Nat. Ins. Co., 213 F.R.D. 422, 430 (D. Kan 2003), it provides a reasoned discussion of the competing interests that arise in the context of an ineffective assistance of counsel claim and their impact on the continued confidentiality of attorney-client communications. In summary, the ABA acknowledges in the opinion that “an ineffective assistance of counsel claim ordinarily waives the attorney-client privilege with regard to some otherwise privileged information,” but cautions that this waiver does not operate to fully release an attorney from his or her obligation to keep client information confidential unless the client gives informed consent for disclosure or disclosure is sanctioned by an exception contained in Model Rule 1.6. After examining the various exceptions contained
in Model Rule 1.6, the ABA concludes that disclosure may be justified in certain circumstances; however, any such disclosure should be limited to that which the attorney believes is reasonably necessary and should be confined to “court-supervised” proceedings, rather than ex parte meetings with the non-client party. Upon examining the provisions of West Virginia’s Rule of Professional Conduct 1.6, the undersigned notes that Rule 1.6(b)(2) permits a lawyer to “reveal such information [relating to the representation of a client] to the extent the lawyer reasonably believes necessary ... to respond to allegations in any proceeding concerning the lawyer’s representation of a client.” In the Comment that follows the Rule, the Supreme Court of Appeals instructs the lawyer to “make every effort practicable to avoid unnecessary disclosure of information relating to a representation, to limit disclosure to those having the need to know it, and to obtain protective orders or make other arrangements minimizing the risk of disclosure.” Ultimately, however, a lawyer must comply with orders
of a court of competent jurisdiction, which require the lawyer to disclose information about the client. Similarly, Model Rule 1.6(b)(5) authorizes an attorney to reveal information regarding the representation of a client to the extent the lawyer reasonably believes necessary “to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” Furthermore, Model Rule 1.6(b)(6) explicitly states that the lawyer may disclose such information “to comply with other law or a court order.” In view of these provisions, the Court finds that Movant’s former counsel may, without violating the applicable Rules of Professional Conduct, disclose information in this proceeding regarding his communications with Movant to the extent reasonably necessary to comply with an order of this Court or to respond to the allegations of ineffective representation. Having addressed the professional responsibilities of Movant’s former counsel, the
Court turns to its authority and obligations. As previously noted, federal courts have long held that when a “habeas petitioner raises a claim of ineffective assistance of counsel, he waives the attorney-client privilege as to all communications with his allegedly ineffective lawyer.” Bittaker v. Woodford, 331 F.3d 715, 716 (9th Cir. 2003).2 Subsequent to the opinion in Bittaker, Rule 502 of the Federal Rules of Evidence was enacted to explicitly
2 See also United States v. Pinson, 584 F.3d 972 (10th Cir. 2009); In re Lott, 424 F.3d 446 (6th Cir. 2005); Johnson v. Alabama, 256 F.3d 1156 (11th Cir. 2001); Tasby v. United States, 504 F.2d 332 (8th Cir. 1974); Dunlap v. United States, 2011 WL 2693915 (D.S.C.); Mitchell v. United States, 2011 WL 338800 (W.D. Wash). deal with the effect and extent of a waiver of the attorney-client privilege in a Federal proceeding. Rule 502(a)3 provides in relevant part: When the disclosure is made in a Federal proceeding or to a Federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a Federal or State proceeding only if: (1) the waiver is intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness to be considered together.
Nonetheless, the Court retains authority to issue a protective order governing production of the privileged information, including the method by which the currently undisclosed communications will be disclosed. See Rule 12, Rules Governing § 2255 Proceedings; Fed .R. Civ. P. 26(c); and Fed. R. Evid. 503(d); See also United States v. Nicholson, 611 F.3d 191, 217 (4th Cir. 2010). Rule 7 of the Rules Governing Section 2255 Proceedings expressly authorizes the use of affidavits as part of the record. In order to determine whether an evidentiary hearing is necessary, an affidavit submitted by Movant’s former counsel would be useful to the Court. Moreover, such affidavit and any supporting documents should supply the basic information required by the United States to allow it to respond to Movant’s section 2255 motion while simultaneously ensuring a reasonable limitation on the breadth of the waiver of the attorney-client privilege. Additionally, the undersigned finds that specific court-imposed limitations on the use of the privileged information are necessary to protect Movant’s future interests. As noted by the Fourth Circuit in United States v. Nicholson, supra, 611 F.3d at 217, citing
3 The Federal Rules of Evidence are applicable in a § 2255 proceeding “to the extent that matters of evidence are not provided for in the statutes which govern procedure therein or in other rules prescribed by the Supreme Court pursuant to statutory authority.” Fed. R. Evid. 1101(e). See also U.S. v. Torrez-Flores, 624 F.2d 776 (7th Cir 1980); United States v. McIntire, 2010 WL 374177 (S.D. Ohio); Bowe v. United States, 2009 WL 2899107 (S.D. Ga.); Rankins v. Page, 2000 WL 535960 (7th Cir.); Ramirez v. United States, 1997 WL 538817 (S.D.N.Y). The statutes and rules governing § 2255 actions do not address the assertion or waiver of the attorney-client privilege. Bittaker v. Woodford, supra at 722-723 (9th Cir. 2003), a protective order prohibiting the subsequent and unfettered use of privileged information disclosed in a section 2255 proceeding is entirely justified, because otherwise the movant would be forced to make a painful choice between “asserting his ineffective assistance claim and risking a trial where the prosecution can use against him every statement he made to his first lawyer” or “retaining the privilege but giving up his ineffective assistance claim.” Accordingly, it is hereby ORDERED that the attorney-client privilege, which attaches to the communications between Movant and his former counsel, shall not be deemed automatically waived in any other Federal or State proceeding by virtue of the above- ordered disclosure in this section 2255 proceeding. The affidavit and documents supplied by Movant’s former counsel shall be limited to use in this proceeding, and the United States is prohibited from otherwise using the privileged information disclosed by Movant's former counsel without further order of a court of competent jurisdiction or a written waiver by Movant. It is further ORDERED that Movant’s reply, if any, shall be filed on or before September 6, 2018. The Clerk is requested to mail a copy of this Order to Movant, and to transmit it to counsel of record, as well as Movant's former counsel, Lex A. Coleman and Sebastian M. Joy. ENTER: May 1, 2018
/ VN Aen be a Dwane L. Tinsley —._ United States Magistrate Judge