Opinion
18 Cr. 80 (PKC) 22 Cv. 01774 (PKC)
05-18-2022
United States of America v. Robert Acosta, Defendant.
ORDER RE: ATTORNEY-CLIENT PRIVILEGE WAIVER (INFORMED CONSENT)
HON. P. KEVIN CASTEL UNITED STATES DISTRICT JUDGE SOUTHERN DISTRICT OF NEW YORK
WHEREAS Robert Acosta (the “Petitioner”) has moved for relief from his conviction pursuant to 28 U.S.C. § 2255 on the ground of ineffective assistance of counsel; and
WHEREAS the Government, after reviewing the motion papers, has concluded that the testimony of Petitioner's former counsel (“Counsel”) will be needed in order to allow the Government to respond to the motion; and
WHEREAS the Court, after reviewing the motion papers, is satisfied that the testimony of Counsel is needed in order to allow the Government to respond to the motion; and
WHEREAS by making the motion, the movant has waived the attorney-client privilege as a matter of law; and
WHEREAS the Court is cognizant that, absent court order or informed consent, ethical concerns may inhibit Counsel from disclosing confidential information relating to a prior client even in the absence of a privilege, see, e.g., ABA Standing Comm, on Ethics and Prof. Responsibility Formal Op. 10-456 (July 14, 2010), Disclosure of Information to Prosecutor When Lawyer's Former Client Brings Ineffective Assistance of Counsel Claim.
IT IS HEREBY ORDERED that Counsel shall give sworn testimony, in the form of an affidavit, addressing the allegations of ineffective assistance of counsel made by movant; and it is further
ORDERED that Petitioner execute and return to this Court within 45 days from today's date the accompanying “Attorney-Client Privilege Waiver (Informed Consent)” form. If the document is not received by the court within 45 days from today's date, the court will deny the § 2255 motion, on the ground that the movant failed to authorize the disclosure of information needed to permit the Government to respond to the motion; and it is further
ORDERED that the Government shall have 45 days from receipt of Counsels' affidavits to respond to Petitioner's motion.