Wisconsin Court Finds Defendant Waived Attorney-Client Privilege in Child Pornography Case

By Reddin & Singer

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In Knope v. United States, a Wisconsin man was convicted of attempting to entice a child to perform a sex act and possessing child pornography in 2010. As a result of his conviction, the man was sentenced to serve 135 months in a federal penitentiary. After he was sentenced, the man filed a motion to vacate or correct his prison sentence under 28 U.S.C. § 2255.

As part of his motion, the man asserted that his sentence should be changed because he received ineffective legal assistance. According to the man, his attorney should have argued that the admission of certain evidence was unconstitutional, his lawyer failed to seek a mistrial when appropriate, and his counsel did not fully investigate certain testimony offered at trial. The government argued it could not fully respond to the convicted man’s claims because he refused to consent to disclosure of any attorney-client communications. Because of this, the United States asked the court to declare that the man waived the attorney-client privilege with regard to any communications that were related to his ineffective legal assistance claims.

The Eastern District of Wisconsin stated only an individual client may waive the attorney-client privilege. This privilege requires a lawyer to refrain from sharing any confidential communications made by a client to his or her legal counsel. The federal court said waiver of the attorney-client privilege may occur expressly or implicitly. The court then stated this privilege is implicitly waived when a client places his or her counsel’s advice at issue in a habeas case. The Wisconsin court continued by stating the man was not entitled to deny that such a waiver occurred while simultaneously asserting an ineffective assistance of counsel claim due to fairness issues.

According to the federal court, any confidential communications directly related to a client’s ineffective legal assistance claims must be disclosed in order to provide the government with a fair chance to build a defense. Despite this, the court stated no other privileged information may be released without the client’s consent. As a result, a court must specifically identify what information may be disclosed. After reviewing relevant Wisconsin case law, the Eastern District of Wisconsin held the man waived his attorney-client privilege with regard to the topics asserted in his motion.

Since it was unclear whether the man understood that he would be required to waive this privilege when he filed his motion to set aside or correct his child pornography sentence, the court provided the man with the opportunity to drop his claims in lieu of releasing privileged communications to the United States.

If you were charged with possession of child pornography or other sex crimes in Wisconsin, you should consult with a knowledgeable Milwaukee criminal defense lawyer as soon as possible. To learn more about your rights and options, contact the law offices of Reddin & Singer, LLP through our website or give us a call today at (414) 271-6400. We may also be reached through our phone number (414) 271-6400.

Additional Resources

Knope v. United States, Dist. Court, ED Wisconsin 2015

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