There has been an interesting privilege fight brewing in the US District Court for the Eastern District of Missouri before the Hon. E. Richard Webber, which will examine the scope of privilege waived when a person challenges a conviction for ineffective assistance of counsel.

In Jones v. United States, Case 4:11CV702, James Jones seeks post-conviction relief under 28 USC 2255 by arguing in part that his trial counsel, Robert Taafe, failed to provide competent representation.

While reviewing Taafe's file, the AUSA litigating the case realized that some of the documents were likely privileged. The US Attorney's Office therefore filed a requested a prehearing determination on whether it could review Taafe's file and whether it could question Taafe outside court proceedings about the representation. Among other authority, ABA Formal Opinion 10-456 suggests questioning outside court proceedings is not appropriate, because the waiver of privilege that results from filing a section 2255 motion is rather narrow and requires court supervision.

In an earlier order, available below, Judge Webber set a hearing for this morning. Apparently the hearing was held today, but one subpoenaed witness, Lionel Bailey, failed to appear. Thus, after more than 90 minutes, the hearing was continued so that Mr. Bailey would have a chance to appear.

I will keep an eye on this proceeding, to see how it resolves the question of whether trial counsel should be eligible for examination outside court proceedings.