Safe Havens

(C)  Waiver of Attorney Client and Work Product Privileges.  Before filing a habeas petition, on grounds of ineffective counsel, it is important to recognize that doing so may waive attorney‑client and work‑product privileges as to confidential matters within the memory or file of original trial counsel. [43]  Trial counsel may be granted the power to breach these privileges in order to “defend himself.” [44]

            In In re Gray,[45] the court held that “the attorney‑client privilege is waived as to matters put in issue in habeas corpus proceedings where the competency of defendant’s trial attorney is at  issue.” [46]  The waiver is limited “to issues raised in the petition . . . .” [47]  Thus, the attorney may not divulge privileged information that does not bear on the specific allegation of IAC.  The privilege remains as to all matters not relevant to the claim of ineffective counsel. [48]  The privilege is intact until a court rules it has been breached, since the attorney must honor the client’s privilege until he has been instructed to the contrary. [49]

            Counsel should carefully consider how to frame the IAC claims in order to limit any waiver of the privilege.  Moreover, when raising other claims, such as the claim that the court violated state advisal statutes such as California Penal Code § 1016.5 by failing to inform the client of the potential immigration consequences, it may be wise to avoid reference to confidential attorney-client conversations in order to preclude the prosecution from breaching the privilege and proving that the attorney gave the client the required information.  Unless the habeas petition prevails, any waiver of the privilege is insignificant: the client has already been convicted and sentenced.  However, if the habeas petition prevails, and the conviction is set aside, waiver of the privilege may make new evidence available to the prosecution and may make it more likely that the defendant will be convicted of more or worse offenses than those to which s/he pleaded guilty originally.  Defense counsel can attempt to protect against this by obtaining “use immunity” for the client.  In People v. Dennis,[50] the court held that an IAC claim in a new trial motion waives the privilege, but that the defendant is entitled to use immunity for disclosures that he or she must make in support of this claim.  The same should hold true for disclosures necessarily made in IAC claims in habeas petitions, as well.  Consider the possible adverse consequences of vacating a conviction.

[43] E.g., California Evidence Code § 958 provides that “[t]here is no privilege under this article as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer‑client relationship.”  See United States v. Amlani, 169 F.3d 1189 (9th Cir. March 3, 1999) (defendant’s claim of attorney disparagement, that prosecution committed misconduct by undermining defendant’s faith in his attorney, implicitly waived the attorney-client privilege).

[44] In Carlson, Collins, Gordon & Bold v. Banducci, 257 Cal.App.2d 212 (1967), the attorneys sued the client to collect their fee and had to breach the privilege to show why the case was particularly difficult.  The court upheld the breach of privilege on the ground that “when in litigation between an attorney and his client, an attorney’s integrity, good faith, authority, or performance of his duties is questioned, the attorney is permitted to meet this issue with testimony as to communications between himself and his client.”  In People v. Morris, 20 Cal.App.3d 659 (1971), the court held that Evidence Code § 958 applied in the criminal context, in which client claimed attorney had told him he would receive no more than six months if he pleaded guilty.  Client was later charged with perjury for making this claim under oath.  The court upheld this breach of the privilege.

[45] In re Gray, 123 Cal.App.3d 614 (1981).

[46] See also People v. Pope, 23 Cal.3d 412, 440 (1979), (Mosk, J., dissenting): “A petitioner for habeas corpus may learn, to his sorrow, that by opening up the issue of his trial attorney’s ability in a new proceeding, he waived much of the attorney‑client privilege.  A trial attorney whose competence is assailed by his former client must be able to adequately defend his professional reputation, even if by doing so he relates confidences revealed to him by the client.”  (Id., at p. 615‑616.).

[47]  Id., at p. 617.  See also Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003) (district court was entirely justified in entering a protective order which limited the scope of the habeas petitioner’s waiver of the attorney-client privilege to communications pertaining to ineffective assistance of counsel claim, as opposed to extending the waiver of privilege to all time and all purposes).

[48]  The Ninth Circuit has recently held that the attorney-client privilege is not impliedly waived in a legal malpractice action when the information sought is not vital to the defense.  The Home Indemnity Co. v. Miller, 43 F.3d 1322 (9th Cir. 1995).  See also United States v. Dupas, 14 M.J. 28, (1982).

[49]  See, e.g., Benge v. Superior Court, 131 Cal.App.3d 336, 344‑345 (1982).

[50] People v. Dennis, 177 Cal.App.3d 863 (1986).