United States District Court, District of Columbia
L. FRIEDMAN UNITED STATES DISTRICT JUDGE
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
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.
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.
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)).
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).
Motion to Confirm Waiver of the Attorney-Client
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.
Scope of the Waiver
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.
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