UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) UNITED STATES OF AMERICA , ) ) v. ) Criminal No. 05

- 100

- 02 (PLF) ) Civil Action No. 17

- 2044 (PLF) DAVID WILSON , ) ) Defendant. ) ____________________________________)

MEMORANDUM OPINION The matter s before the Court are the motion s of the United States to confirm defendant David Wilson’s w aiver of the a ttorney

- client p rivilege [Dkt. No. 1669] and to c ompel
p roduction of d ocuments [ Dkt. No. 1670]

. Mr. Wilson opposes both motion s
. U pon careful consideration of the parties’ written submissions , the relevant legal authorities, and the relevant portions of the record in this case, the Court will grant the m otio n to confirm waiver of the attorney

- client privilege , subject to certain modifications

. The Court will deny the motion to compel production of documents. 1

1 In connection with the pending motion s , the Court has reviewed the following filings, including the exhibits attached thereto : March 22, 2011 Judgment (“Judgment”) [Dkt. No. 1445]; Mr. Wilson’s Motion to Vacate Conviction Pursuant to 28 U.S.C. § 2255 (“Section 2255 Mot.”) [Dkt. No. 1637]; Mr. Wilson’s Supplement to his Section 2255 Motion (“Suppl. Section 2255 Mot.” ) [Dkt. No. 1638]; Mr. Wilson’s Pro Se Motion for Leave to File Memorandum of Fact and Law in Support of his Section 2255 Motion (“ Pro Se Section 2255 Mot.”) [Dkt. 1639]; Mr. Wilson’s Second Supplement to Section 2255 Motion (“Second Suppl. Section 2255 Mot.”) [Dkt. 1667]; United States’ Motion to Confirm Waiver of the Attorney

- Client Privilege [Dkt. No. 1669] and to Compel Production of Documents [Dkt. No. 1670] (collectively , “Mot.”) ; Mr. Wilson’s Consolidated Opposition (“Opp’n”) [Dkt. No. 1676]; United States’ Consolidated Reply (“Reply”) [Dkt. No. 1677] ; and United States’ Notice of Revised Proposed Order (“Revised Proposed Order”) [Dkt. No. 1680]

.2 I. BACKGROUND
In November 2007 , Mr. Wilson was convicted of two counts of aiding and abetting first

- degree murder, seven counts of distributing crack cocaine, and one count of using a communications facility in relation to a narcotics offense. See United States v. Be ll , 795 F.3d
88 , 92 (D.C . Cir. 2015)

. Judge Richard W. Roberts sentenced Mr. Wilson to 48 months in prison

on h is communication s facility conviction and 188 months for each crack cocaine distribution
count , those sentences to run concurrently. See Judgment at 3. Judge Roberts also sentenced Mr. Wilson to 3 60 months to life in prison under the District of Columbia Code for each murder conviction , those sentences to run concurrent ly to each other and consecutive ly to the other
sentences

. See id

. at 4. The D.C. Circuit affirmed the conviction s in July 2015

. See United
States v. Be ll , 795 F.3d at 91

. In October 2017, M r. Wilson filed a motion under 28 U.S.C. § 2255 to , inter alia , vacate his convictions for aiding and abetting murder based on ineffective assistance of counsel

. In May 2 018, t he United States moved for an order: (1) confirming Mr. Wilson’s waiver of the attorney

- client privilege with respect to his ineffect ive assistance of counsel claim s ; (2) allowing Mr. Wilson’s former counsel

– Jenifer Wicks, Gary Proctor, and Matthew Davies

– to “ freely discuss ” their representation as it relates to “issues raised in the defendant’s claims of ineffective assistance of counsel”; (3) allow ing his former counsel to testify at an evidentiary h earing and to provide an affidavit or declaration relating to Mr. Wilson’s claims ; and ( 4 ) compelling Mr. Wilson’s former counsel to “provide documents relevant to these same issues.” S ee Mot. at 1 and Ex. 1

.3 II. LEGAL STANDARD It is settled that when a habeas petitioner raises a claim of ineffective assistance of counsel, courts find a corresponding implied waiver of the attorney

- client privilege with respect to former counsel on matters necessary to decide the ineffective assis tance of counsel claim. See United States v. Pinson , 584 F.3d 972, 978 (10th Cir. 2009) (“Given the ample, unanimous federal authority on point, we hold that when a habeas petitioner claims ineffective assistance of counsel, he impliedly waives attorney

- c lient privilege with respect to communications with his attorney necessary to prove or disprove his claim.”); United States v. Straker , 258 F. Supp. 3d 151, 153

- 54 (D.D.C. 2017); United States v. Lewis , 824 F. Supp. 2d 169, 172 (D.D.C. 2011) (“[W]here a cl aim of ineffective assistance of counsel is asserted, there is an ‘implied waiver’ of the [attorney

- client] privilege.”) (alteration in original) (citing Bittaker v. Woodford , 331 F.3 d 715, 719

- 20 (9th Cir. 2003) (en banc) ). Rule 1.6 of the District of Columbia Rules of Professional Conduct addresses the waiver of the attorney

- client privilege in situations involving claims of in effective assistance of counsel. It provides that “ [a] lawyer may use or reveal client confidences or secrets . . . to the extent reasonably necessary to respond to specific allegations by t he client concerning the lawyer’ s representation of the client.” See D.C. Rule of Prof ’ l Conduct 1.6(e)(3); see also D. C. Bar Ethics Opinion No. 364 , Confidentiali ty Obligations When Former Client Makes Ineffective Assistance of Counsel Claim ( January 2013) (“D.C. Bar Ethics Opinion 364”). D.C. Rule 1.6(b) defines “confidence” as “ information protected by the attorney

- client privilege under appl icable law,” and def ines “secret ” as “ other information gained in the professional relationship that the client has requeste d be held inviolate, or the dis closure of which would be embarrassing, or would be likely to be detrimental, to the client. ” See D.C. Rule of Prof’ l Conduct 1.6(b).4 I I I . DISCUSSION
A. Motion to Confirm Waiver of the Attorney

- Client Privilege Mr. Wilson acknowledges that his claims of ineffective assistance of counsel operate as a n implied waiver of the attorney

- client privilege, but ar gues that the waiver is limited. In particular, Mr. Wilson contends that: (1) the United States’ proposed waiver is

over broad; (2) the United States should be prohibited from engaging in ex parte communications with Mr. Wilson’s former counsel; and (3) a protective order should be entered to prohibit the use of confidential information obtained as a result of Mr. Wilson’s waiver of the attorney

- client privilege, outside of this Section 2255 proceeding or any appeal from this proceeding

. See Opp’n at 1 . The Court will address each argument in turn.
1. Scope of the Waiver In its motion, t he United States originally sought to confirm Mr. Wilson’s waiver of the attorney

- client privilege for information “relating to” or “relevant to” his ineffective

a ssistance of counsel claim s
. S ee Mot. at 3 and Ex. 1. Mr. Wilson object s to this language as overbroad. See Opp’n at 1

- 2. Citing D.C. Bar Ethics Opinion 364, Mr. Wilson asserts that he has waived the attorney

- client privilege only to the extent that di sclosures by his former couns el are “reasonably necessary” for the United States to defend against the specific allegations of ineffective assistance of counsel. See id . at 2.
D.C. Bar Ethics Opinion 364 addresses a lawyer’s confidentiality obligations when a former client makes an ineffective assistance of counsel claim : “W hen a former client challenges a criminal conviction or sentence on the grounds of ineffective assistance of counsel

. . . D.C. Rule 1.6(e)(3) permits the lawyer to disclose client confidences and secrets only insofar as reasonably necessary to respond to the client’s specific allegations abo ut the lawyer’s5 representation.” See D.C. Bar Ethics Op. 364 at 1 ; s ee also United States v. Straker , 258 F. Supp. 3d at 156 (a dopting standard set forth in D.C. Rule 1.6(e)(3) to hold that petitioners raising ineffective assistance of counsel claims waived the attorney

- client privilege to the extent that disclosure was “reasonably necessary to resp ond to specific allegations” mad e by petitioners ). In its reply, the United States does not object to the inclusion of the “reasonably necessary” language in its proposed order. See Reply at 6 n.1; see also United States v. Straker , 258 F. Supp. 3d at 156

. Accordingly, consistent with D.C. Rule 1.6(e)(3) and D.C. Bar Ethics Opinion 364 , t he Court concludes that Mr. Wilson’s former counsel are authorized to disclose to counsel for the United States information that is reasonably necessary to respond to Mr. Wi lson’s specific allegations of ineffective assistance of counsel in this Section 2255 proceeding. This includes discussing their representation of Mr. Wilson in this matter, disclosing any relevant documents in their possession, providing an affidavit or declaration if appropriate , and testifying at an evid entiary hearing

– to the extent that the disclosures are reasonably necessary to respond to Mr. Wilson’s specific allegations of ineffective assistance of counsel in this case
.

2

. Ex Parte Communications In his opposition, Mr. Wilson seeks a protective order barring ex parte communications between counsel for the United States and Mr. Wilson’s former lawyers outside the presence of Mr. Wilson’s current counsel. See Opp’n at 3

- 4. He asserts that ex parte communications would deprive him of an opportunity to object to disclosures that exceed his limited waiver of the attorney

- client privilege. See id . at 4. Mr. Wilson relies on an Opinion issued by the American Bar Association (“ABA”) Standing Committee on Ethics and Professional Responsibility , which provides that “[i] t is highly unlikely that a disclosure in response to a prosec ution request, prior to a6 court

- supervised response by way of test imony or otherwise, will be justifiable. It will be rare to confront circumstances where trial counsel can reasonably believe that such prior, ex parte disclosure, is necessary to respond to allegations against the lawyer. ” See ABA Comm’n on Ethics & Pro f’l Responsibility, F ormal Op. 10

- 456, at 5 (2010). But ABA Formal Opinion
10

- 456 interprets Rule 1.6 of the ABA Model Rules of Professional Conduct, which differs from both D.C. Rule 1.6 and the controlling ethics opinion in this jurisdiction , D.C. Bar Ethics Opinion 364

. Indeed, D.C. Bar Ethics Opinion 364 expressly states that “w e do not share the [ABA] Opinion’ s view that extrajudicial disclosure rarely will be justifiable.” See D.C. Bar Ethics Op. 364 at 8

. Nor does this Court. D.C. Rule 1.6(e)(3 ) permits former counsel to make disclosures to and engage in communications with government counsel outside the presence of
current defense counsel so long as the disclosures and communications are “reasonably necessary to respond to specific allegations” of ineffective assistance of counsel

. See D.C. Bar Ethics Op. 364 at 9 (“D.C. R ule 1.6(e)(3) permits a defense lawyer whose conduct has been placed in issue by a former client’s ineffective assistance of counsel claim to make, without judici al approval or supervision, such disclosures of information protected by Rule 1.6 as are reasonably necessary to respond to the client’s specific allegations about the lawyer’s performance.”). Mr. Wilson also relies on United States v. Soomai , where Jud ge Roberts granted petitioner’ s request to prohibit ex parte communications between the United States and former counsel. See United States v. Soomai , 928 F. Supp. 2d 170, 173 (D.D.C. 2013). In United States v. Soomai , Judge Roberts relied on ABA Formal Opi nion 10

- 456 rather than on D.C. Bar Ethics Opinion 364 , which had then only recently been issued and apparently was not brought to Judge Roberts’ attention. Since United States v. Soomai was decided, several other judges of this7 Court have d eclined to follow ABA Formal Opinion 10

- 456 and have permitted government counsel to communicate with former defense counsel outside the presence of the defendant’s
current counsel

. See , e.g. , United States v. Straker , 258 F. Supp. 3d at 156

- 57 (Bates, J.) ; Order, United States v. Talbott , No. 11

- 0 357 (D.D.C Aug. 17, 2016 ) (Collyer, J.), ECF No. 172 at 4 ( declining to prohibit ex parte communicatio n because ABA Formal Opinion 10

- 456 is not the governing rule in this D istrict); Order, United States v. Lewis , No. 07

- 0 119 (D.D.C. Apr. 20, 2011) (Kessler, J.), ECF No. 67 (declining to follow ABA Formal Opinion 10

- 456 and denying petitioner’ s motion in limine to bar former defense counsel from speaking with gover nment counsel). See also Order , United States v. Cross , No. 09

- 0 281 (D.D.C. Jan. 18, 2017 ) (Cooper, J.), ECF No. 460 ; Order, United States v. Mohammed , No. 06

- 0 357 (D.D.C. June 12, 2015) (Kollar

- Kotelly, J.), ECF No. 144 (permitting former counsel to discuss representation of petitioner with the government as it relates to petitioner’ s ineffective assistance of counsel claims )

. 2
In accordance w ith recent decisions of other judges in this District , as well as D.C. Rule 1. 6(e)(3) and D.C. Bar Ethics Opinion 364 , the Court will not prohibit counsel for the United States from communicating and meeting with Mr. Wilson’s former counsel outside the presence of Mr. Wilson’s current counsel

– so long as the disclosures made by former counsel during those communications and meetings are “reasonably necessary to respond to specific allegations” of ineffective assistance of counsel

.

2 Mr. Wilson also cite s two out

- of

- circuit decisions from West Virginia that rely on ABA Formal Opinion 10

- 456 (which , as noted, differs from D.C. Bar Ethics Opinion 364) and West Virginia Rule of Professional Conduct 1.6 (which differs from D.C. Rule 1.6) to g rant protective orders prohibiting ex parte communication s between former counsel and government counsel

. See Hudson v. United States , No. 10

- 0981 , 2011 WL 3667602, at *2 (S.D. W. Va. Aug. 22, 2011); Hicks v. United States , No. 10

- 1155 , 2010 WL 5441679, at *3 (S.D. W. Va. Dec. 28, 2010).8 3

. U se of Confidential Information In his opposition, Mr. Wilson seeks a protective order prohibiting the use of confidential information obtained as a result of his waiver of the attorney

- client privilege , outside of this Section 2255 proceeding and any appeal thereof

. See Opp’n at 5. In its reply, t he United
States agrees to “ limit its direct evidentiary use of any documentary or testimonial evidence from defendant’s trial counsel to this § 2255 proceeding and any appeal from this proceeding. ” See Reply at 4. In its revised proposed order attached to its reply, however, t he U nited States asks that it also be permitted to use “ privileged information obtained in this proceeding if the defendant commits perjury or attempt s to obstruct, or obstruct s justice , in this proceeding

. ” See Revised Proposed Order at 1

- 2

. Mr. Wilson will not be permitted to rely on the attorney

- client privilege to protect him from prosecution if he were to commit perjury, or to attempt to obstruct or obstruct justice, during the adjudication of this S ection 2255 claim

. See In re Kellogg Brown & Root, Inc. , 796 F.3d 137, 145 (D.C. Cir. 2015) (“[T]he attorney

- client privilege cannot at once be used as a shield and a sword.” ) (quoting United States v. Bilzerian , 926 F.2d 1285, 1292 (2d Cir. 1991));
U nited States v. Straker , 258 F. Supp

. 3d at 15 9. Accordingly, the United Sta tes’ use of the documentary or testimonial evidence obtained from Mr. Wilson’s former counsel is limited to this Section 2255 proceeding and any appeal from this proceeding, except that the United States9 may use such privileged i nformation if Mr. Wilson commits perjury, or attempts to obstruct, or obstructs justice, in this proceeding

. 3
B. Motion to Compel Production of Documents Finally, t he United States moves to compel Mr. Wilson’s former counsel to produce documents with in their possession and control that are “ relevant ” to the issues raised by Mr. Wilson’s ineffective assistance of counsel claims. See Mot. at 3 and Ex. 1. Mr. Wilson objects to the United States’ motion to the extent that it suggests that his former counsel are required to disclose privileged information to the United States

. See Opp’n at 7

- 8. Mr. Wilson does not object, however, t o an order authorizing his former counsel to disclose documents reasonably necessary to defend against his ineffective assistance of counsel claims, consistent with his limited implied waiver of attorney

- client privilege

. See id . at 7. As discussed previously, see supra at 4

- 5 , D.C. Rule 1.6 makes clear that “a lawyer may use or reveal client confidences or secrets . . . to the extent reasonably necessary to respond to specific allegations by t he client concerning the lawyer’ s representation of the client.”
See D.C. Ru le of Prof’ l Conduct 1.6(e)(3). The Rule says “may,” not “shall.” Further, D.C. Bar Ethics Opinion 3 64 provides that former counsel’ s decision to disclose is “permissive, not mandatory , ” and “the lawyer may choose not to respond because, for example, the lawyer may think the disclosure may harm the client, [or] the prosecutor already has the information necessary to respond to the claim.” See D.C. Bar Ethics Op. 364 at 7. F ormer counsel therefore

3 The proposed order attached to Mr. Wilson’s opposition incl udes the following language: “[N] o government attorneys with access to this confidential information shall . . . participate in any subsequent criminal proceedings involving [Mr. Wilson]

. ” See Opp’n Ex. 1 at ¶ (d)

. Mr. Wilson does not address this proposal in his opposi tion brief . Nor does he cite any authority to support such a limitation. Given that the use of privileged information will be limited to this Section 2255 proceeding

– with the limited exceptions just discussed

– Mr. Wilson’s request is denied.10 are permitted, but not required, to disclos e information to the government in response to an ineffective assistance of counsel claim. See United States v. Straker , 258 F. Supp. 3d at 156 (citing D.C. Rule 1.6(e)(3) and D .C. Bar Ethics Opinion No. 364 ) . Accordingly, the Court will deny the United States’ motion to compel production of documents to the extent that it requires disclosure by Mr. Wilson’s former counsel

.

I V . CONCLUSION For the reasons set for th in this Memorandum O pinion, the Court will grant the motion of the United States to confirm Mr. Wilson ’s waiver of the attorney

- client p rivilege [Dkt. No. 1669] , subject to certain modifications. The Court will deny the motion of the United
States to c ompel p roduction of d ocuments from Mr. Wilson’s former counsel [Dkt. No. 1670]

. An Order consistent with this Memorandum Opinion will issue this same day.
SO ORDERED.

________________________ PAUL L. FRIEDMAN United States District Judge

DATE: Oct ober 4, 2018