Opinion
No. CV 10-0618 JB/LAM, CR 09-1801 JB.
July 27, 2010
ORDER FINDING WAIVER OF ATTORNEY-CLIENT PRIVILEGE
THIS MATTER is before the Court on the United States['] Motion for Order Finding Defendant Waived Attorney-Client Privilege by Filing Motion Pursuant to 28 U.S.C. § 2255 (Doc. 6). Plaintiff/Respondent states that it will require an affidavit from Defendant/Movant's counsel in his underlying criminal case, Joseph W. Gandert, as part of its response to Defendant/Movant's ineffective assistance of counsel claims in his Section 2255 Motion. See Doc. 6 at 2. Plaintiff/Respondent, therefore, asks the Court to find that Defendant/Movant has waived his attorney-client privilege regarding communications with Mr. Gandert that relate to his claims of ineffective assistance of counsel. Id. at 3. In light of the analysis and holding in United States v. Pinson, 584 F.3d 972, 977-79 (10th Cir. 2009), the Court finds that, by claiming ineffective assistance of counsel in his Section 2255 Motion, Defendant/Movant impliedly waived the attorney-client privilege with respect to communications with his attorney to the extent necessary to prove or disprove those claims. Furthermore, the Court enters this order without waiting for Defendant/Movant's response because, first, even if he opposes the motion, Pinson clearly directs that it be granted and, second, Plaintiff/Respondent requires the order before it can respond to the underlying Section 2255 Motion, which is due August 2, 2010. IT IS THEREFORE ORDERED that the United States['] Motion for Order Finding Defendant Waived Attorney-Client Privilege by Filing Motion Pursuant to 28 U.S.C. § 2255 (Doc. 6) is GRANTED, and the Court finds that Defendant/Movant waived his right to assert the attorney-client privilege with respect to communications with Mr. Gandert necessary to prove or disprove his claims of ineffective assistance of counsel.