- 1 - 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

Plaintiff/Respondent, Case No. 15-20283 

v. Hon. George Caram Steeh 

D-1 BORIS ZIGMOND, 

Defendant/Petitioner. 

ORDER GRANTING GOVERNMENT’S MOTION (DOC. 387) AND 

ADVISING PRO SE PETITIONER OF ATTORNEY-CLIENT 

PRIVILEGE WAIVER 

Petitioner Boris Zigmond filed a motion to vacate his sentence 

under 28 U.S.C § 2255. (Doc. 383). Among other claims, Zigmond

alleges that he received ineffective assistance from his trial counsel, 

Attorney Ronald W. Chapman, II. In response, the government filed a 

motion asking the court to find a waiver of the attorney-client privilege, 

direct Zigmond’s trial counsel to provide information and testimony 

related to the ineffective assistance claim, and extend the time to 

respond to the petition. Petitioner opposes the government’s motion. 
- 2 - 

The attorney-client privilege protects certain communications 

between an attorney and client from disclosure without the client's 

permission. In re Lott, 424 F.3d 446, 452 (6th Cir. 2005). The 

privilege applies to “all stages of all actions, cases, and proceedings” 

including habeas proceedings. Id. (quoting Fed. R. Evid. 1101(c)). But 

“the attorney-client privilege cannot be used as a sword and a shield at 

the same time.” United States v. Lossia, No. 04-80422, 2008 WL 

192274, at *1 (E.D. Mich. Jan. 23, 2008) (Pepe, M.J.). “The privilege 

may be implicitly waived by claiming ineffective assistance of counsel 

or by otherwise raising issues regarding counsel's performance.” Lott, 

424 F.3d at 452. For instance, a habeas petitioner who “injects into 

[the] litigation an issue that requires testimony from its attorneys or 

testimony concerning the reasonableness of its attorneys’ conduct” 

waives the attorney-client privilege by implication. Id. (quoting 

Johnson v. Alabama, 256 F.3d 1156, 1178 (11th Cir.2001)). Then, the 

Court will construe the implied waiver narrowly, only “to the extent 

necessary to litigate a petitioners’ ineffective assistance of counsel 

claims.” Id. 

Here, Zigmond alleges ineffective assistance from Attorney 
- 3 - 

Chapman. Specifically, Zigmond alleges that he received ineffective 

assistance of counsel “from the onset” and that trial counsel “coerced 

him into accepting a bad plea deal without the benefits of Zigmond’s 

cooperation, prejudicing him with a loss of appellate rights with a 

sentence and forfeiture greater than promised.” The government

cannot adequately investigate and respond to Zigmond’s motion 

without obtaining information from Attorney Chapman regarding his 

communications with Zigmond. 

If Zigmond chooses to preserve the attorney-client privilege 

between himself and Attorney Chapman, he may withdraw the 

ineffective-assistance-of-counsel claim. If Zigmond fails to withdraw 

the ineffective-assistance-of-counsel claim, the court will recognize that 

Zigmond has waived the attorney-client privilege and work-product 

privilege to the extent necessary to litigate his claim. In addition, the 

court will order Attorney Chapman to provide testimony and all 

documents and communications with Zigmond relating to Zigmond’s

claims. 

Therefore, IT IS HEREBY ORDERED that the government's 

motion (Doc. 387) is GRANTED. Unless Petitioner WITHDRAWS the 
- 4 - 

ineffective-assistance-of-counsel claim within 30 days of the date of 

this order, the court will consider Petitioner to have WAIVED the 

attorney-client privilege to the extent necessary to litigate his claim, 

and will reset the briefing schedule. 

IT IS SO ORDERED. 

Dated: July 12, 2019 

 s/George Caram Steeh 

 GEORGE CARAM STEEH 

 UNITED STATES DISTRICT JUDGE 

 

CERTIFICATE OF SERVICE 

Copies of this Order were served upon attorneys of record on 

July 12, 2019, by electronic and/or ordinary mail and also on 

 Boris Zigmond, #07790-104, FCI Miami, 

P. O. Box 779800, Miami, FL 31777. 

s/Barbara Radke 

Deputy Clerk