Wagner v. United States

Background

David Wagner, who is also identified in the related criminal case as the defendant, filed a motion under 28 U.S.C. § 2255 seeking relief from his conviction. He alleged that his former lawyer, Martin S. Cohen, provided ineffective assistance of counsel.

The government informed the court that Cohen’s testimony would be needed to respond to some of Wagner’s allegations. After reviewing the motion papers, the court agreed that the testimony was necessary.

Attorney-client privilege and required authorization

The court stated that by filing the ineffective-assistance motion, Wagner waived attorney-client privilege as a matter of law, but only as relevant to his claim. The court also recognized that ethical concerns could otherwise prevent Cohen from disclosing confidential information about a former client.

The court therefore ordered Cohen to provide sworn testimony addressing Wagner’s allegations, in the form of an affidavit or affirmation. It separately ordered Wagner to sign and return the accompanying Attorney-Client Privilege Waiver (Informed Consent) form within 60 days of the order. The form had to be signed and notarized and authorized Cohen to disclose confidential communications only in response to the court’s order and only to the extent necessary to address the ineffective-assistance allegations.

Ruling and deadlines

The order stated that Wagner faced the risk that Cohen’s testimony could contradict his allegations. It also stated that the court may deny Wagner’s § 2255 motion if he failed to authorize the disclosure needed for the government to respond. The order did not resolve the merits of Wagner’s ineffective-assistance claim.

The government was given 45 additional days after receiving Wagner’s executed authorization to obtain Cohen’s sworn testimony and file its opposition and any additional supporting papers. Judge Alvin K. Hellerstein signed the order on March 21, 2022.