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United States v. Wilson

United States District Court, District of Columbia

October 4, 2018

UNITED STATES OF AMERICA,
v.
DAVID WILSON, Defendant.

          MEMORANDUM OPINION

          PAUL L. FRIEDMAN UNITED STATES DISTRICT JUDGE

         The matters before the Court are the motions of the United States to confirm defendant David Wilson's waiver of the attorney-client privilege [Dkt. No. 1669] and to compel production of documents [Dkt. No. 1670]. Mr. Wilson opposes both motions. Upon careful consideration of the parties' written submissions, the relevant legal authorities, and the relevant portions of the record in this case, the Court will grant the motion to confirm waiver of the attorney-client privilege, subject to certain modifications. The Court will deny the motion to compel production of documents.[1]

         I. BACKGROUND

         In November 2007, Mr. Wilson was convicted of two counts of aiding and abetting first-degree murder, seven counts of distributing crack cocaine, and one count of using a communications facility in relation to a narcotics offense. See United States v. Bell, 795 F.3d 88, 92 (D.C. Cir. 2015). Judge Richard W. Roberts sentenced Mr. Wilson to 48 months in prison on his communications facility conviction and 188 months for each crack cocaine distribution count, those sentences to run concurrently. See Judgment at 3. Judge Roberts also sentenced Mr. Wilson to 360 months to life in prison under the District of Columbia Code for each murder conviction, those sentences to run concurrently to each other and consecutively to the other sentences. See id. at 4. The D.C. Circuit affirmed the convictions in July 2015. See United States v. Bell, 795 F.3d at 91. In October 2017, Mr. Wilson filed a motion under 28 U.S.C. § 2255 to, inter alia, vacate his convictions for aiding and abetting murder based on ineffective assistance of counsel.

         In May 2018, the United States moved for an order: (1) confirming Mr. Wilson's waiver of the attorney-client privilege with respect to his ineffective assistance of counsel claims; (2) allowing Mr. Wilson's former counsel - Jenifer Wicks, Gary Proctor, and Matthew Davies - to “freely discuss” their representation as it relates to “issues raised in the defendant's claims of ineffective assistance of counsel”; (3) allowing his former counsel to testify at an evidentiary hearing and to provide an affidavit or declaration relating to Mr. Wilson's claims; and (4) compelling Mr. Wilson's former counsel to “provide documents relevant to these same issues.” See Mot. at 1 and Ex. 1.

         II. LEGAL STANDARD

         It is settled that when a habeas petitioner raises a claim of ineffective assistance of counsel, courts find a corresponding implied waiver of the attorney-client privilege with respect to former counsel on matters necessary to decide the ineffective assistance of counsel claim. See United States v. Pinson, 584 F.3d 972, 978 (10th Cir. 2009) (“Given the ample, unanimous federal authority on point, we hold that when a habeas petitioner claims ineffective assistance of counsel, he impliedly waives attorney-client privilege with respect to communications with his attorney necessary to prove or disprove his claim.”); United States v. Straker, 258 F.Supp.3d 151, 153-54 (D.D.C. 2017); United States v. Lewis, 824 F.Supp.2d 169, 172 (D.D.C. 2011) (“[W]here a claim of ineffective assistance of counsel is asserted, there is an ‘implied waiver' of the [attorney-client] privilege.”) (alteration in original) (citing Bittaker v. Woodford, 331 F.3d 715, 719-20 (9th Cir. 2003) (en banc)).

         Rule 1.6 of the District of Columbia Rules of Professional Conduct addresses the waiver of the attorney-client privilege in situations involving claims of ineffective assistance of counsel. It provides that “[a] lawyer may use or reveal client confidences or secrets . . . to the extent reasonably necessary to respond to specific allegations by the client concerning the lawyer's representation of the client.” See D.C. Rule of Prof'l Conduct 1.6(e)(3); see also D.C. Bar Ethics Opinion No. 364, Confidentiality Obligations When Former Client Makes Ineffective Assistance of Counsel Claim (January 2013) (“D.C. Bar Ethics Opinion 364”). D.C. Rule 1.6(b) defines “confidence” as “information protected by the attorney-client privilege under applicable law, ” and defines “secret” as “other information gained in the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client.” See D.C. Rule of Prof'l Conduct 1.6(b).

         III. DISCUSSION

         A. Motion to Confirm Waiver of the Attorney-Client Privilege

         Mr. Wilson acknowledges that his claims of ineffective assistance of counsel operate as an implied waiver of the attorney-client privilege, but argues that the waiver is limited. In particular, Mr. Wilson contends that: (1) the United States' proposed waiver is overbroad; (2) the United States should be prohibited from engaging in ex parte communications with Mr. Wilson's former counsel; and (3) a protective order should be entered to prohibit the use of confidential information obtained as a result of Mr. Wilson's waiver of the attorney-client privilege, outside of this Section 2255 proceeding or any appeal from this proceeding. See Opp'n at 1. The Court will address each argument in turn.

         1. Scope of the Waiver

         In its motion, the United States originally sought to confirm Mr. Wilson's waiver of the attorney-client privilege for information “relating to” or “relevant to” his ineffective assistance of counsel claims. See Mot. at 3 and Ex. 1. Mr. Wilson objects to this language as overbroad. See Opp'n at 1-2. Citing D.C. Bar Ethics Opinion 364, Mr. Wilson asserts that he has waived the attorney-client privilege only to the extent that disclosures by his former counsel are “reasonably necessary” for the United States to defend against the specific allegations of ineffective assistance of counsel. See id. at 2.

         D.C. Bar Ethics Opinion 364 addresses a lawyer's confidentiality obligations when a former client makes an ineffective assistance of counsel claim: “When a former client challenges a criminal conviction or sentence on the grounds of ineffective assistance of counsel . . . D.C. Rule 1.6(e)(3) permits the lawyer to disclose client confidences and secrets only insofar as reasonably necessary to respond to the client's specific allegations about the lawyer's representation.” See D.C. Bar Ethics Op. 364 at 1; see also United States v. Straker, 258 F.Supp.3d at 156 (adopting standard set forth in D.C. Rule 1.6(e)(3) to hold that petitioners raising ineffective ...


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