Tuesday, September 22, 2009

Open Season On Client File

A defendant under sentence of death filed a petition for post-conviction relief that included "allegations...so broad as to encompass effectively the entire scope of trial counsel's obligation's in [his] defense. Trial counsel met with attorneys of the Attorney General's Office ("AGO") and made his full file available for their inspection and review. When the defendant learned of this, he sought return of the file and disqualification of the attorneys who had seen it.

The South Carolina Supreme Court found a complete waiver of attorney-client privilege: 

...Petitioner waived his attorney-client privilege “to the extent necessary for prior counsel to respond to the allegation[s]” of ineffectiveness.  S.C. Code Ann. § 17-27-130 (1996).  We find that the particular allegations made in Petitioner’s application for PCR were so broad as to effectuate a complete waiver of his attorney-client privilege. 

Although Petitioner’s application alleged many grounds of ineffectiveness, we find that the breadth of three particular allegations constituted a complete waiver of Petitioner’s attorney-client privilege.  Specifically, Petitioner’s application alleges that trial counsel was ineffective because he failed to (1) “investigate the facts and circumstances surrounding the death of the victim,” (2) “investigate, develop, and present all available, relevant, and admissible mitigating evidence,” and (3) “investigate and present evidence in support of all potential defenses in the guilt and innocence phase.”  The breadth of these allegations, which encompass in effect the entirety of trial counsel’s obligations in presenting a defense, necessitated a review of the entire trial file in order for the AGO, on behalf of trial counsel, to properly “respond to the allegation[s]” in Petitioner’s application. 

Finally, pursuant to the clear and unambiguous language of § 17-27-130, prior counsel was justified in disclosing the entire trial file for reviewing and copying.  Section 17-27-130 states,

[C]ounsel alleged to have been ineffective is free to discuss and disclose any aspect of the representation with representatives of the State for purposes of defending against the allegations of ineffectiveness, to the extent necessary for prior counsel to respond to the allegation. 

This provision permits prior counsel, when faced with extremely broad allegations of ineffectiveness, to provide representatives of the State with any information he deems necessary for the defense of his representation.  Under the specific facts of this case, prior counsel was justified in making Petitioner’s entire trial file available to the AGO.

A dissent would grant the relief:

Reading the first paragraph of the statute, it is my opinion that the automatic waiver of the privilege does not extend to the entire file, but is instead limited to: “oral and written communications between counsel and the defendant, and between retained or appointed experts and the defendant,to  the extent necessary for prior counsel to respond to the allegation….Thereafter, counsel alleged to have been ineffective is free to discuss and disclose any aspect of the representation with representatives of the State…to the extent necessary for prior counsel to respond to the allegation.”  It is noteworthy that while  this paragraph makes no mention of counsel’s file, but instead  explicitly limits the permissible scope of counsel’s disclosures to AGO attorneys, it is upon this paragraph of the statute alone that the majority rests its holding.

The second paragraph of the statute does directly reference the attorney’s file, and is specifically directed to capital cases such as this.  This paragraph requires that the capital defendant’s trial and/or appellate attorneys make files available to the defendant’s PCR counsel who may inspect and copy the contents  but explicitly requires that the original attorneys otherwise retain custody of their files.  To hold, as does the majority, that under this statute these attorneys are free to turn over their entire files to the AGO is puzzling in light of the statute’s clear directive that the files are to remain in the custody of the original attorney, and be made available only to the applicant’s attorney.  I would not foreclose the possibility that an attorney charged with rendering ineffective assistance may need to rely upon an item in her file as part of her defense, but that is a far cry from copying the entire file and turning it over to the AGO.

When the Court abolished the doctrine of in favorem vitae, it did so in large part in reliance upon the legislature’s adoption of the Uniform Post Conviction Relief Act.  State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).  The decision today to hold that this  pro se capital defendant has made a wholesale waiver of his attorney-client privilege undermines one of the fundamental tenets upon which the abolition of the ancient doctrine rested, that is, that PCR “safeguards the [capital defendant] and render[s] the protection afforded by in favorem vitae surplusage.”  Id. at 61, 406 S.E.2d 324.

I would reverse the circuit court’s order, require that the file be returned to trial counsel, and would disqualify any member of the AGO’s staff who has viewed this file or any of its contents.  I respectfully dissent.

(Mike Frisch)


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