Gonzalez v. United States
- Richard Berman
- 1:23-cv-02026
- U.S. District Court · Southern District of New York
- 4
In Gonzalez v. United States, Judge Berman ordered a former lawyer’s limited testimony before evaluating Gonzalez’s petition.
Christian Gonzalez, his former lawyer Glenn Garber, and the United States government. The order requires Gonzalez to decide whether to authorize limited disclosure of attorney-client communications and sets deadlines for Garber, the government, and Gonzalez.
What happened
In Gonzalez v. United States, Christian Gonzalez asked the court to set aside his criminal judgment based partly on claims that his former lawyer, Glenn Garber, provided ineffective assistance. The court said Garber’s testimony was needed for the government to respond and for the court to review the petition.
The court ordered the clerk to send Gonzalez an informed-consent form. If Gonzalez wants to continue pursuing his petition, he must sign and notarize the form and return it within 30 days, unless the court extends the deadline. The form authorizes Garber to disclose confidential communications only under a court order and only as needed to address the ineffective-assistance claims.
Judge Richard M. Berman ordered Garber to submit a sworn declaration within 21 days after the signed form is filed. The government then has 21 days to respond, and Gonzalez has 15 days after receiving that response to reply. The order did not decide whether Gonzalez’s petition has merit.
The detailed version
- Gonzalez v. United States · No. 1:23-cv-02026
- Richard Berman
- May 30, 2023
Background
Christian Gonzalez filed a petition under 28 U.S.C. § 2255 asking the court to address, among other matters, allegations that his former court-appointed lawyer, Glenn Garber, was ineffective. The opinion also lists a related criminal docket, No. 21-CR-0262-1. The government stated that it needed Garber’s testimony to respond to the petition, and the court agreed that the testimony was needed to review the claims.
Attorney-client privilege
The court stated that filing an ineffective-assistance claim waives the attorney-client privilege to the extent necessary to address that claim. Attorney-client privilege generally protects confidential communications between a lawyer and client from compelled disclosure. The court also recognized that ethical duties concerning former-client confidentiality could otherwise limit Garber’s disclosure of information.
The court therefore directed the clerk to serve Gonzalez with an Attorney-Client Privilege Waiver (Informed Consent) form. If Gonzalez wishes to continue pursuing his petition, he must sign and notarize the form and return it for filing within 30 days from service of the order, unless the court extends the deadline. The authorization permits Garber to disclose confidential communications only in response to the court’s order and only as necessary to address the ineffective-assistance allegations. The form warns that Garber’s testimony could contradict Gonzalez’s statements and states that the court may deny the petition if Gonzalez does not authorize the testimony.
Orders and next steps
Within 21 days after the executed waiver is filed, Garber must provide sworn testimony in a declaration addressing Gonzalez’s ineffective-assistance allegations. Within 21 days after the later filing of Garber’s declaration, the government must file an answer or other response to the petition. Gonzalez then has 15 days after being served with the government’s response to file his reply. Unless the court orders otherwise, the petition will be considered fully submitted after that reply period.
Disposition
Judge Richard M. Berman issued a case-management and evidence-gathering order requiring a limited privilege waiver and former-counsel declaration before the petition proceeds. The order did not grant or deny Gonzalez’s § 2255 petition and did not decide the ineffective-assistance claims.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.