Attorney-Client Privilege is Impliedly Waived in Claims of Ineffective Assistance of Counsel

Summary of GIORDANO v. UNITED STATES OF AMERICA (D. Conn., March 17, 2011)

In Giordano v. United States of America, the Government filed a motion to permit it to interview Giordano’s former criminal defense counsel and to review a copy of relevant documents. Giordano, the former mayor of Waterbury, Connecticut, was found guilty in 2003 of conspiracy to defraud the United States and to use interstate facilities to transmit information about minors. He was sentenced to a total term of 444 months, and the Second Circuit confirmed his conviction but remanded the case for reconsideration of the sentence in light of the sentencing guidelines. On remand, the judge denied Giordano’s request for resentencing. Having exhausted his direct appeals, Giordano sought an order from the court vacating, setting aside, or correcting his sentence and, among other claims, asserted a claim for ineffective assistance of counsel.

The government, in response, sought to interview Giordano’s former defense counsel. The Court granted the Government’s motion with some limitations. The court discussed the attorney-client privilege doctrine and indicated that the Second Circuit has never had occasion to consider the issue raised. The court stated that it has little difficulty in concluding that when a prisoner asserts a claim of ineffective assistance of counsel by his former lawyer, there is an implicit waiver of the protection of the attorney-client privilege as to the aspects of the former attorney’s representation to which the prisoner claims there was ineffective representation. The court stated that the doctrine of waiver by implication reflects the position that that attorney-client privilege was intended as a shield, not a sword, noting, however, that implied waivers are limited to only that confidential information that is needed to defend against the prisoner’s specific claims. The court also stated that it is aware of no federal court requirement that a Government interview of a prisoner’s former counsel be on-the-record, and held that it would not so order. The court determined that it will be largely up to the Government and Giordano’s former attorney to determine whether the particular information has been waived.

Impact: This case shows the importance of educating attorneys to contact their malpractice insurance carriers for guidance with respect to any request for documents from third parties in order to determine whether the information has been waived and under what circumstances such waived information should be turned over, by court supervised proceedings, such as depositions and hearings.

For a copy of this decision, click here: http://tinyurl.com/GS-April-PLM