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January 25, 2012

US v. Gonzalez (2012) 2012 WL 206266

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The Ninth Circuit holds that a defendant’s motion raising claims of ineffective assistance of counsel does not unilaterally waive a joint defense privilege.

Louis Gonzalez and his wife, Katherine Paiz were convicted in separate trials of insurance fraud involving arson of Paiz’s car.  Gonzalez initially told the FBI that he had burned the car without his wife’s knowledge.  Shortly before his trial, Gonzalez claimed that he had nothing to do with the crime and that he had lied to the government to protect his wife.  Paiz was ultimately convicted on all counts.  She then brought a habeas petition alleging that her attorney, Nina Wilder, provided ineffective assistance of counsel by failing to call Gonzalez as a witness.

In the habeas proceeding, the government sought discovery regarding Wilder’s statements to the district court including communications Wilder had received from Gonzalez’s counsel relating to his potential testimony at Paiz’s trial.  Gonzalez moved to quash on the basis of the joint defense privilege.  The District Court denied the motion, holding that even if a joint defense agreement existed, it must yield to Paiz’s discovery needs.

The Ninth Circuit found that despite the lack of a written agreement, there was evidence of a limited joint defense agreement.  It existed at the outset of the case, but may have ended when Gonzalez decided to blame his wife for the crime.  Thus, the Court remanded and directed the trial court to determine when the joint defense agreement terminated and when the relevant communications took place.

The Court reversed the trial court’s decision that Gonzalez’s communications were discoverable.  First, it disagreed with the district court’s ruling that the statements should be treated as “work product communications” rather than “privileged statements.” Precedent establishes that the joint defense privilege is an extension of the attorney-client privilege and all attorneys involved in the communication owe a duty of confidentiality.

Paiz’s ineffective counsel motion did not act as a unilateral waiver of the privilege as to all communications by both Paiz and Gonzalez.  Allowing unilateral waiver of confidential communications by a single co-defendant without the consent of the other would severely undermine the rationale for the joint defense privilege.

Comment: This case thoroughly reviews joint defense agreement law and holds that one party to a joint defense agreement cannot unilaterally waive the attorney-client privilege on behalf of other parties to the agreement.  This would suggest that the filing of a legal malpractice action by one party to a joint defense agreement does not act as a waiver for all communications that took place in the context of that agreement.  This issue could affect attorneys sued for malpractice who seek to use such communications defensively.

 

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