UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION

JAMES ASHBURN, 5:24-CV-05078-RAL

Petitioner, ORDER RE: ATTORNEY-CLIENT vs. PRIVILEGE WAIVER; GRANTING MOTION FOR EXTENSION OF TIME UNITED STATES OF AMERICA, AND DIRECTING FORMER DEFENSE COUNSEL TO RESPOND Respondent. (DOC. 7)

The Government has requested an Order Directing Former Defense Counsel to Respond to Petitioner’s Claims of Ineffective Assistance set forth in Petitioner’s Motion under

. The Eighth Circuit Court of Appeals has recognized that the attorney- client privilege may be impliedly waived when a client attacks her attorney’s competence and raises the issue of ineffectiveness or incompetence of counsel. See Tasby v. United States,

(8th Cir. 1974). ABA Model Rule of Professional Conduct 1.6 also recognizes that a disclosure may be impliedly authorized under certain circumstances including when a lawyer must respond to allegations in any proceeding concerning the lawyer’s representation of his or her client. The American Bar Association, however, has issued an opinion advising that former counsel confronted with a client making ineffective assistance of counsel claims, consistent with their ethical obligations (1) may not disclose information imparted to him or her in confidence without first obtaining the informed consent of the former client; and (2) may only disclose such information in “court-supervised testimony.” ABA Comm. on Eth. and Prof’l

Responsibility, Formal Op. 10-456 (July 14, 2010). In consideration of the allegations set forth in Petitioner’s Motion under

, this Court has determined that the Government cannot respond to the allegations of ineffective assistance of counsel without attorneys Michael Wheeler, Ryan Kolbeck, and Paul Andrews responding by affidavit to the specific allegations in the Motion concerning his representation of Petitioner. If Petitioner opposes the waiver of the Attorney-Client privilege as it relates to the specific allegations in her Motion under

, those

allegations will be stricken from Petitioner’s Motion under

. CONCLUSION For the reasons stated above, IT IS ORDERED:

1. The Respondent’s Motion (Doc. 7) directing former defense counsel to respond is granted as follows:

A. That the Clerk shall send this Order and the attached Attorney- Client Privilege Waiver form to Petitioner;

B. That if the Attorney-Client Privilege Waiver form is not signed and returned to the Clerk for filing within fourteen (14) days, the allegations of ineffective assistance of counsel will be stricken from Petitioner’s Motion under

;

C. That if the Attorney-Client Privilege Waiver form is signed and filed, the Government shall forward a copy of the signed Attorney-Client Privilege Waiver form to Attorneys Michael Wheeler, Ryan Kolbeck, and Paul Andrews, along with a copy of this Order and Petitioner’s § 2255 Motion. Attorneys Michael Wheeler, Ryan Kolbeck, and Paul Andrews shall within fourteen (14) days of receiving the Attorney-Client Privilege Waiver form provide and file with the Clerk an affidavit responding to the specific allegations in the § 2255 Motion concerning his representation of Petitioner. D. The Government shall promptly thereafter serve a copy of Mr. Wheeler, Mr. Kolbeck, and Mr. Andrews’s affidavit upon Petitioner. 2. The Respondent’s Motion for Extension of Time (Doc. 7) is granted and the United States shall file its response no later than 30 days after all three attorney affidavits have been received. DATED this 10th day of December, 2024. BY THE COURT:

DANETA WOLLMANN United States Magistrate Judge

ATTORNEY-CLIENT PRIVILEGE WAIVER

You have made a motion under

alleging that you received ineffective assistance from your former lawyer, Michael Wheeler. The Court has reviewed your motion and determined that an affidavit from your former lawyer concerning the specific allegations in your motion is necessary to in order to evaluate your motion.

The American Bar Association advises your attorney to obtain your consent before disclosing confidential communications between you and him that may bear on the disposition of your motion. This is a professional ethics requirement. As a matter of law, you have waived the attorney-client privilege regarding the allegations of ineffective assistance of counsel in your motion. This means that if you wish to proceed on your claims of ineffective assistance, you must allow your communications with your former counsel concerning the specific claims to be disclosed to the Government and to the Court.

If you wish to proceed with your claims of ineffective assistance of counsel as set forth in your Section 2255 motion, you must sign this form and return it to the Court. The form authorizes your attorney to disclose confidential communications only to the extent necessary to address the ineffective assistance of counsel claims that are raised by your

motion.

You should know that if you sign this authorization, you run the risk that your attorney will contradict your statements about her representation of you. However, you should also know that the Court will strike the ineffective assistance of counsel claims in your motion if you do not authorize your attorney to give an affidavit in response to the ineffective assistance claims.

You must return this form within fourteen (14) days from the date of the Court’s order directing the clerk to mail this Waiver to you or the allegations of ineffective assistance of counsel will be stricken from your motion under

.

AUTHORIZATION

I have read the document entitled “Attorney-Client Privilege Waiver.” I hereby authorize my former attorney, Michael Wheeler, to disclose confidential communications only to the extent necessary to address the ineffective assistance of counsel claims that are raised by my motion under

.

Dated this _____ day of __________, 20___.

_________________________________ Petitioner ATTORNEY-CLIENT PRIVILEGE WAIVER

You have made a motion under

alleging that you received ineffective assistance from your former lawyer, Ryan Kolbeck. The Court has reviewed your motion and determined that an affidavit from your former lawyer concerning the specific allegations in your motion is necessary to in order to evaluate your motion.

The American Bar Association advises your attorney to obtain your consent before disclosing confidential communications between you and him that may bear on the disposition of your motion. This is a professional ethics requirement. As a matter of law, you have waived the attorney-client privilege regarding the allegations of ineffective assistance of counsel in your motion. This means that if you wish to proceed on your claims of ineffective assistance, you must allow your communications with your former counsel concerning the specific claims to be disclosed to the Government and to the Court.

If you wish to proceed with your claims of ineffective assistance of counsel as set forth in your Section 2255 motion, you must sign this form and return it to the Court. The form authorizes your attorney to disclose confidential communications only to the extent necessary to address the ineffective assistance of counsel claims that are raised by your

motion.

You should know that if you sign this authorization, you run the risk that your attorney will contradict your statements about her representation of you. However, you should also know that the Court will strike the ineffective assistance of counsel claims in your motion if you do not authorize your attorney to give an affidavit in response to the ineffective assistance claims.

You must return this form within fourteen (14) days from the date of the Court’s order directing the clerk to mail this Waiver to you or the allegations of ineffective assistance of counsel will be stricken from your motion under

.

AUTHORIZATION

I have read the document entitled “Attorney-Client Privilege Waiver.” I hereby authorize my former attorney, Ryan Kolbeck, to disclose confidential communications only to the extent necessary to address the ineffective assistance of counsel claims that are raised by my motion under

.

Dated this _____ day of __________, 20___.

_________________________________ Petitioner ATTORNEY-CLIENT PRIVILEGE WAIVER

You have made a motion under

alleging that you received ineffective assistance from your former lawyer, Paul Andrews. The Court has reviewed your motion and determined that an affidavit from your former lawyer concerning the specific allegations in your motion is necessary to in order to evaluate your motion.

The American Bar Association advises your attorney to obtain your consent before disclosing confidential communications between you and him that may bear on the disposition of your motion. This is a professional ethics requirement. As a matter of law, you have waived the attorney-client privilege regarding the allegations of ineffective assistance of counsel in your motion. This means that if you wish to proceed on your claims of ineffective assistance, you must allow your communications with your former counsel concerning the specific claims to be disclosed to the Government and to the Court.

If you wish to proceed with your claims of ineffective assistance of counsel as set forth in your Section 2255 motion, you must sign this form and return it to the Court. The form authorizes your attorney to disclose confidential communications only to the extent necessary to address the ineffective assistance of counsel claims that are raised by your

motion.

You should know that if you sign this authorization, you run the risk that your attorney will contradict your statements about her representation of you. However, you should also know that the Court will strike the ineffective assistance of counsel claims in your motion if you do not authorize your attorney to give an affidavit in response to the ineffective assistance claims.

You must return this form within fourteen (14) days from the date of the Court’s order directing the clerk to mail this Waiver to you or the allegations of ineffective assistance of counsel will be stricken from your motion under

.

AUTHORIZATION

I have read the document entitled “Attorney-Client Privilege Waiver.” I hereby authorize my former attorney, Paul Andrews, to disclose confidential communications only to the extent necessary to address the ineffective assistance of counsel claims that are raised by my motion under

.

Dated this _____ day of __________, 20___.

_________________________________ Petitioner