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Keywords

litigationattorneyappealtrialattorney-client privilege
litigationattorneylawyerappealtrialwillcriminal lawprosecutorattorney-client privilege

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Bittaker v. Woodford, 331 F.3d 715, 55 Fed. R. Evid. Serv. 923, 03 Cal. Daily Op. Serv. 4773, 2003 Daily Journal D.A.R. 6078

Facts

Lawrence Bittaker was convicted in California state court of multiple murders and sentenced to death. After exhausting his state remedies, he filed a federal habeas petition under 28 U.S.C. § 2254, raising several claims, including ineffective assistance of counsel. The district court entered a protective order to prevent the use of privileged attorney-client communications for any purpose other than the habeas litigation, which the state appealed.

The district court entered a protective order precluding use of the privileged materials for any purpose other than litigating the federal habeas petition, and barring the Attorney General from turning them over to any other persons or offices, including, in particular, law enforcement or prosecutorial agencies.

Issue

Does the scope of a habeas petitioner's waiver of attorney-client privilege, arising from a claim of ineffective assistance of counsel, extend beyond the litigation of the federal habeas petition?

The question presented to us is the scope of the habeas petitioner's waiver: Does it extend only to litigation of the federal habeas petition, or is the attorney-client privilege waived for all time and all purposes—including the possible retrial of the petitioner, should he succeed in setting aside his original conviction or sentence?

Rule

A habeas petitioner's waiver of attorney-client privilege due to ineffective assistance of counsel claims is limited to the litigation of the federal habeas petition and does not extend to other proceedings, including potential retrials.

It has long been the rule in the federal courts that, where a habeas petitioner raises a claim of ineffective assistance of counsel, he waives the attorney-client privilege as to all communications with his allegedly ineffective lawyer.

Analysis

The court determined that allowing a broad waiver of attorney-client privilege would undermine the confidentiality essential to the attorney-client relationship and could unfairly advantage the prosecution in any retrial. The court emphasized that the waiver should be narrowly tailored to only what is necessary for the habeas proceedings, thus preserving the integrity of the attorney-client privilege while ensuring a fair adjudication of the ineffective assistance claim.

A narrow waiver rule—one limited to the rationale undergirding it—will best preserve the state's vital interest in safeguarding the attorney-client privilege in criminal cases, thereby ensuring that the state's criminal lawyers continue to represent their clients zealously.

Conclusion

The Ninth Circuit affirmed the district court's protective order, concluding that the waiver of attorney-client privilege was appropriately limited to the federal habeas proceedings.

We conclude that the order is appealable because significant strategic decisions turn on its validity; review after final judgment may therefore come too late.

Who won?

Lawrence Bittaker prevailed in the case because the court upheld the protective order that limited the use of privileged materials to the habeas litigation, thereby protecting his attorney-client communications from being used in a potential retrial.

Lawrence Bittaker prevailed in the case because the court upheld the protective order that limited the use of privileged materials to the habeas litigation, thereby protecting his attorney-client communications from being used in a potential retrial.

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