Harrison v. United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
GREGORY HARRISON, 5:23-CV-05003-RAL
Plaintiff,
vs.
ORDER REGARDING ATTORNEY-
CLIENT PRIVILEGE WAIVER
UNITED STATES OF AMERICA,
Defendant.
Petitioner, Gregory Harrison, filed a pro se motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. Doc. 1. Harrison pled guilty to one count of Conspiracy to
Commit Brank Fraud and two covmts of Aggravated Identity Theft. Doc. 101 in 5:20-cr-50018-
JLY. Harrison was represented by Federal Public Defender Thomas M. Diggins.
On January 25,2023,the United States filed a Motion for Order Directing Former Defense
Counsel to Respond to Claims of Ineffective Assistance and Motion for Extension of Time to
Answer. Doc. 5. The United States Court of Appeals for the Eighth^ Circuit has recognized that
the attomey-client privilege may be impliedly waived when a client attacks his attorney's conduct
and raises the issue of ineffectiveness or incompetence of counsel. S^ Tasbv v. United States,
504 F.2d 332,336(8th Cir. 19741: see also Bittaker v. Woodford,331 F.3d 715,716(9th Cir. 2003)
("It has long been the rule in federal courts that, where a habeas petitioner raises a claim of
ineffective assistance of counsel, he waives the attomey-client privilege as to all communications
with his allegedly ineffective lawyer. "). American Bar Association Model Rule of Professional
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Conduct 1.6 also recognizes that a disclosure of information 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 ABA 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 ofthe former client; and 2) may
only disclose such information in "court-supervised proceedings." ABA Comm.on Ethics & Prof!
Responsibility, Formal Op. 10-456 (2010).
In consideration of the allegations set forth in Harrison's 28 U.S.C. § 2255 motion, this
Court has determined that the United States cannot respond to the allegations of ineffective
assistance of counsel without Mr. Diggins responding by affidavit to the specific allegations in the
motion concerning his representation of Harrison. This Court has further determined that if
Harrison opposes the waiver ofthe attorney-client privilege as it relates to the specific allegations
in his § 2255 motion,those allegations will be stricken from his § 2255 motion. Accordingly, it is
hereby
ORDERED that the Clerk of Court will send this Order and the attached Attorney-Client
Privilege Waiver form to Harrison. It is further
ORDERED that ifthe Attorney-Client Privilege Waiver form is not signed and returned to
this Court within 30 days, the allegations ofineffective assistance of counsel will be stricken from
Harrison's § 2255 motion. It is further
ORDERED that the United States shall have an extension to answer Harrison's motion
under 28 U.S.C. § 2255 until thirty (30) days after attorney Diggins furnishes an affidavit. It is
finally
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ORDERED that Harrison will have thirty(30)days to reply after the United States' answer.
DATED this 26th day of January, 2023.
BY THE COURT;
ROBERTO A. LANGE
CHIEF JUDGE
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