and especially when his version of what transpired reflects upon the attorney, the reason for the rule ceases to exist, and the attorney is at liberty to divulge the communications about which the clienthas testified.' (Emphasis supplied.)
To the same effect are Farnsworth v. Sandford, 5 Cir., 115 F.2d 375, 377; United States v. Mahoney, D.C., 43 F.Supp. 943, 946; Mahoney v. United States, D.C., 48 F.Supp. 212, 215; and United States v. Monti, D.C., 100 F.Supp. 209, 212.
In United States v. Butler, D.C., 167 F.Supp. 102, 104, which involved a motion under Section 2255, the Court stated:
'While the rule with respect to privileged communications between attorney and client should be zealously guarded, yet this privilege may be destroyed by the acts of the client in attacking the attorney on a charge of dereliction of duty.' (Emphasis supplied.)
Many State courts have reached the same conclusions. Nave v. Baird, 12 Ind. 318; Moore v. State, 231 Ind. 690, 111 N.E.2d 47; Kennedy v. State, 232 Ind. 695, 116 N.E.2d 98; Everett v. Everett, 319 Mich. 475, 29 N.W.2d 919; Chase v. Chase, 78 R.I. 278, 81 A.2d 686.
If such a situation arises in actions against a physician or surgeon for malpractice, the latter is permitted to give testimony in his own defense that under other circumstances would be within the patient's privilege, Becknell v. Hosier, 10 Ind.App. 5, 11, 37 N.E. 580; Lane v. Boicourt, 128 Ind. 420, 423, 27 N.E. 1111.
To be sure in the case at bar trial counsel is not expressly accused of a dereliction of duty in failing to raise the issue that the defendant was not competent to stand trial. Such a criticism, however, is involved by necessary implication, because if the defendant was actually mentally incompetent to understand the proceedings against him and properly to assist in his own defense, these facts would have necessarily appeared to counsel in his consultations with his client and in any conversations had with him either before or during the trial. It then would have become the duty of counsel to bring this matter to the attention of the court. Consequently, the manner in which trial counsel conducted the defense is tacitly attacked by the defendant, quite as much as though he had expressly made a statement to that effect. This Court held that under these circumstances, while counsel should not be required or compelled to testify, he nevertheless should be accorded the privilege of doing so, upon his request, which is what took place in this instance.
Such a course was approved by the Court of Appeals for the District of Columbia in Olmstead v. Webb, 5 App.D.C., 38, 51, where Shepard, J., wrote as follows:
'The object of the rule (i.e. regarding the confidential character of communications between attorney and client) ceases, and the attorney is no longer bound by his obligation, when the client or his representatives charge him, either directly or indirectly, with fraud or other improper or unprofessionalconduct.' (Emphasis supplied.)
This Court was not unmindful of the per curiam opinion of the Court of Appeals for this Circuit in Gunther v. United States, 97 U.S.App.D.C. 254, 230 F.2d 222, and in compliance with that ruling did not permit trial counsel to express an opinion or conclusion whether the defendant was competent to stand trial. His testimony was restricted to his detailed observations. It may be remarked in this connection that an examination of the briefs tends to indicate that this aspect of the matter was not exhaustively argued by counsel in the Gunther case. No authorities were cited in the opinion of the Court on this point.
In concluding this discussion the Court desires to call attention to the comments of Circuit Judge Pope of the Ninth Circuit, with whom Judges Stephens and Hamlin concurred, in Johnson v. United States, 267 F.2d 813, 815. These observations are applicable generally to motions under Section 2255, and specifically to the motion made in the instant case.
'It is plain that this case does not merit the extensive discussion it has received here. A brief order reciting that the judgment must be affirmed because the court simply found the facts against appellant, on overwhelming evidence against him, should suffice. We have taken pains here to set forth the facts more fully because we think it appropriate, by so doing, to demonstrate how the provisions of Title 28, 2255 can be abused, and judicial processes perverted by the irresponsible use of a well-oiled typewriter and an uninhibited willingness to improvise a story.
'A busy trial court was required to put off pressing cases properly before it to grant a hearing on a petition fabricated by appellant with the aid of some Leavenworth cellmates. * * * An outrageously frivolous appeal such as this, obviously taken in bad faith, should not be allowed to take up the time of a court like this one, swamped with pressing business.
'Cases similar to this are currently flooding the courts by the hundreds. This is not an isolated instance of the abuse of 2255, although candor compels us to say we cannot recall one quite so outrageous as this one. A day to day observation of these cases, as currently proliferated in sundry penitentiaries, suggests the need to build into 2255 some safeguards to protect the courts against the abuse of their processes which persons like this appellant are now enabled to perpetrate.'
The conditions that prevail in the Ninth Circuit as so vividly described by Judge Pope are also to be found in this Court. Thus, during the period commencing July 1, 1959 and ending March 31, 1960, motions under Section 2255 filed in this Court aggregated 182. During the corresponding period of the preceding fiscal year, there were 112 such motions filed. Each motion of this kind necessarily requires individual scrutiny and study. Some of them result in hearings. Yet actually most of them, if not all, have been found to be without foundation. It will be observed that Judge Pope suggests that there is a need to build into Section 2255 some safeguards to protect the courts against abuses of the process. Entirely aside from the financial cost to the Government of all these proceedings and the burden on members of the bar assigned to render gratuitous services to defendants at hearings on such motions, the time that busy courts give to these proceedings necessarily deprives them of an opportunity to devote it to other more deserving matters, and adds to the congestion of dockets. It must be emphasized that in all these cases the defendant has already had his day in court and has been convicted. A strong presumption of guilt is the invariable starting point.
The Court wishes to express its acknowledgment to Edward L. Genn, Esquire, a member of the District of Columbia bar, who was assigned by this Court to represent the defendant on this motion, for his able, zealous and well directed efforts in his client's behalf.
The motion is denied.