Generally, the mere filing of a post-conviction claim does not waive the attorney-client privilege. Rather, it is when the claim asserts inadequacy or failures by former counsel that an implied waiver exists. There is conflict over the breadth of the waiver. In re Lott, 424 F.3d 446, 457-458 (6th Cir. 2005) (litigants cannot hide behind the privilege if they are relying upon privileged communications to make their case), stands for the position that the waiver is narrow, tailored to just those issues related to the claim, not to the entire relationship.



     For discussions on whether and when a claim of ineffective assistance of counsel waives attorney-client privilege, see Johnson v. Alabama, 256 F.3d 1156, 1178 (11th Cir. 2001) (when a habeas petitioner such as Johnson launches an attack on the reasonableness of his attorney's strategy in conjunction with a claim of ineffective assistance of counsel, he puts at issue his communications with counsel relating to those strategic choices); Tasby v. United States, 504 F.2d 332, 336 (8th Cir. 1974) (when a client raises a claim of ineffective assistance of counsel, he waives the attorney-client privilege with regard to "all communications relevant" to the issue of counsel's adequacy), citing 8 J. Wigmore, Evidence 2327 (McNaughton rev. 1961); Vial v. United States, 1998 U.S. Dist. LEXIS 9722 (D.R.I. Apr. 14, 1998); In re Lott, 424 F.3d 446, 453-454 (6th Cir. Ohio 2005).



     In the habeas context, courts have found implied waiver of these privileges when the petitioner "injects into [the] litigation an issue that requires testimony from its attorneys or testimony concerning the reasonableness of its attorneys' conduct." Johnson v. Alabama, 256 F.3d 1156, 1178 (11th Cir. 2001). The implied waiver in habeas proceedings has typically been the result of a petitioner's assertion of his own counsel's ineffectiveness. See id. ("By alleging that his attorneys provided ineffective assistance of counsel in their choice of a defense strategy, [the petitioner] put at issue--and thereby waived--any privilege that might apply to the contents of his conversations with those attorneys to the extent those conversations bore on his attorneys' strategic choices."); Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003); see also Tasby v. United States, 504 F.2d 332, 336 (8th Cir. 1974) ("When a client calls into public question the competence of his attorney, the privilege is waived.").



     Implied waivers are consistently construed narrowly. Courts "must impose a waiver no broader than needed to ensure the fairness of the proceedings before it." Bittaker, 331 F.3d at 720 (habeas proceeding). "A broad waiver rule would no doubt inhibit the kind of frank attorney-client communications and vigorous investigation of all possible defenses that the attorney-client and work product privileges are designed to promote." Id. at 722. In another recent case from the Northern District, the Court applied implied waiver, but rejected an attempt by the warden to unnecessarily pierce the attorney-client privilege. See Mason v. Mitchell, 293 F. Supp. 2d 819, 823-24 (N.D. Ohio 2003). In Mason, the district court found that the petitioner implicitly waived the attorney-client privilege by putting his attorney's performance at issue, but was careful to note that "the waiver in habeas cases should be limited to the extent necessary to litigate a petitioners's ineffective assistance of counsel claims." Id. (citing Bittaker, 331 F.3d at 722). As such, the Mason court rejected the warden's request "to question the Petitioner about what he told his trial counsel regarding his involvement in the crime." Id. Also in Mason, while the District Court found the petitioner had implicitly waived the work product privilege regarding a psychiatric examination, that waiver did not extend to the privilege surrounding any inculpatory statements the Petitioner may have made to the psychiatrist. Id. at 825. . "The attorney-client privilege cannot at once be used as a shield and a sword." United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991). But, while the sword stays sheathed, the privilege stands. Tasby v. United States, 504 F.2d 332, 336 (8th Cir. Ark. 1974).



     It has long been the law that a client may waive protection of the privilege, either expressly or impliedly. Blackburn v. Crawfords, 70 U.S. (3 Wall.) 175, 194, 18 L. Ed. 186 (1865). One of the circumstances which may support a conclusion of a waiver is an attack by the client upon his attorney's conduct which calls into question the substance of their communications. A client has a privilege to keep his conversations with his attorney confidential, but that privilege is waived when a client attacks his attorney's competence in giving legal advice, puts in issue that advice and ascribes a course of action to his attorney that raises the specter of ineffectiveness or incompetence. Here, the confidentiality of the attorney-client relationship was breached by Tasby. Surely a client is not free to make various allegations of misconduct and incompetence while the attorney's lips are sealed by invocation of the attorney-client privilege. Such an incongruous result would be inconsistent with the object and purpose of the attorney-client privilege and a patent perversion of the rule. When a client calls into public question the competence of his attorney, the privilege is waived. Laughner v. United States, 373 F.2d. 326 (5th Cir. 1967); Sherman v. United States, 261 F. Supp. 522, 531 (D.Haw.), aff'd 383 F.2d 837 (9th Cir. 1966); see Pruitt v. Peyton, 243 F. Supp. 907 (E.D.Va. 1965); United States v. Butler, 167 F. Supp. 102 (E.D.Va. 1957), aff'd 260 F.2d 574 (4th Cir. 1958). See, Northup v. State, 272 A.2d 747, 751 (Me. 1971).



     Courts have usually held that the presentation of the issue of inadequate representation of counsel constitutes a waiver of the privilege and permits testimony by the attorney relevant to the issue including the disclosure of conversations between him and his former client which would otherwise be privileged. Moore v. State, 231 Ind. 690, 111 N.E.2d 47 (1953); State v. Kruchten, 101 Ariz. 186, 417 P.2d 510 (1966); Hand v. State, Mo., 447 S.W.2d 529 (1969); People v. Northrop, 29 A.D.2d 895, 287 N.Y.S.2d 987 (1968); United States ex rel. Richardson v. McMann (2d Cir., 1969) 408 F.2d 48; Laughner v. United States (5th Cir., 1967) 373 F.2d 326.
Thanks to David Beneman for this briefing.