Petition of Dean, 711 A.2d 257 (N.H. 1998). · Go Syfert
Petition of Dean, 711 A.2d 257 (N.H. 1998). Cases Citing This Book View Copy Cite
26 citation events (19 in the last 25 years) across 5 distinct courts.
Strongest positive: State v. Lewis (alacrimapp, 2008-07-25)
Treatment trajectory · 1999 → 2026 · click a year to view as-of
1999 2012 2026
Top citers, strongest first. 10 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) State v. Lewis (2×)
Ala. Crim. App. · 2008 · quote attribution · 2 verbatim quotes · confidence high
we hold that claims of ineffective assistance of counsel, whether brought in a motion for new trial or in a habeas corpus proceeding, constitute a waiver of the attorney-client privilege to the extent relevant to the ineffectiveness claim, the waiver is a limited one.
discussed Cited as authority (rule) Harris, Roderick
Tex. App. · 2015 · confidence medium
App. 2008) (noting that, by alleging "ineffective assistance of counsel during the trial and direct appeal of these cases, the defendant waived the benefits of both the attorney-client privilege and the work product privilege, but only with respect to matters relevant to his allegations of ineffective assistance of counsel" (second emphasis added)); Waldrip v. Head, 532 S.E.2d 380, 387 (Ga. 2000) ("[W]e hold that a habeas petitioner who asserts a claim of ineffective assistance of counsel makes a limited waiver of the attorney-client privilege and work product doctrine and the state is entitle…
cited Cited as authority (rule) State v. MacDonald
N.H. · 2011 · confidence medium
See id. at 612-15 (medical negligence case); Petition of Dean, 142 N.H. 889, 890-91 (1998) (ineffective assistance of counsel case).
discussed Cited as authority (rule) Livingston v. 18 MILE POINT DRIVE, LTD.
N.H. · 2009 · confidence medium
In Petition of Dean, 142 N.H. 889, 891 (1998), for instance, we held that a motion for ineffective assistance of counsel, as a matter of law, constitutes a limited waiver of the attorney-client privilege.
discussed Cited as authority (rule) Desclos v. Southern New Hampshire Medical Center
N.H. · 2006 · confidence medium
Generally, there are two means by which disclosure of privileged information may occur: (1) the court finds a waiver of the privilege, Petition of Dean, 142 N.H. 889, 890 (1998); or (2) the court orders a piercing of the privilege, State v. Elwell, 132 N.H. 599, 605 (1989).
discussed Cited as authority (rule) Bennett v. ITT Hartford Group, Inc.
N.H. · 2004 · confidence medium
We have applied this narrow exception to the attorney-client privilege in the case of ineffective assistance of counsel, because such claims went to the “core of attorney-client communications.” Petition of Dean, 142 N.H. 889, 891 (1998).
discussed Cited as authority (rule) Waldrip v. Head (2×)
Ga. · 2000 · confidence medium
But see Waitkus v. Mauet, 157 Ariz. 339 , 757 P.2d 615, 616 (App.1988) (waiver of attorney-client privilege permits questioning of attorney at evidentiary hearing but not access to the attorney's work product and trial preparation files). [32] 244 Ga. 503, 505 , 260 S.E.2d 887 (1979). [33] See Bailey, 232 Ga. at 86 , 205 S.E.2d 278 . [34] See Paul S. Milich, Georgia Rules of Evidence § 21.16 (1995); Hyde v. State, 70 Ga.App. 823, 827 , 29 S.E.2d 820 (1944). [35] See State v. Walen, 563 N.W.2d 742, 753 (Minn.1997) (waiver reaches only communications relevant to the issue of ineffective assista…
discussed Cited as authority (rule) State v. Merritt (2×)
N.H. · 1999 · confidence medium
We decline to review these claims at this juncture because the defendant has not yet raised these issues in the superior court, see, e.g., Petition of Dean, 142 N.H. 889, 890, 711 A.2d 257, 258 (1998) (motion for a new trial); Humphrey v. Cunningham, Warden, 133 N.H. 727, 732-33 , 584 A.2d 763, 766-67 (1990) (petition for a writ of habeas corpus).
cited Cited "see" New Hampshire Department of Environmental Services v. Robert C. Brown
N.H. · 2015 · signal: see · confidence high
See Petition of Dean, 142 N.H. 889, 890-91 (1998).
discussed Cited "see" Colorado v. Grangruth (2×)
Colo. · 1999 · signal: see · confidence high
See Petition of Thomas Dean, 142 N.H. 889 , 711 A.2d 257, 259 (1998) ("Neither a petition for a writ of prohibition nor a petition for a writ of mandamus is the proper vehicle for lodging [substantive] challenges.”); Ohio ex rel.
Retrieving the full opinion text from the archive…
Petition of Thomas Dean
No. 97-547.
Supreme Court of New Hampshire.
Jun 16, 1998.
711 A.2d 257
1998 N.H. LEXIS 54
Wiberg & Wiberg, of Dover (Sven D. Wiberg on the brief and orally), for the petitioner., Philip T. McLaughlin, attorney general (Mark D. Attorri senior assistant attorney general, on the brief and orally), for the State.
Thayer.
Cited by 13 opinions  |  Published
THAYER, J.

The petitioner, Thomas Dean, petitions for a writ of prohibition and a writ of mandamus. See SUP. CT. R. 11. He[*890] challenges an order of the Superior Court (Perkins, J.) that denied him a hearing on his motion for a new trial, based on ineffective assistance of counsel, unless he first executed a limited, written waiver of his attorney-client privilege. He further requests that we grant him a new trial on several grounds. We deny his petition for both writs in part and vacate the order of the superior court in part.

In April 1996, a jury convicted the petitioner of numerous crimes, including criminal restraint, criminal threatening, reckless conduct, and kidnapping. In April 1997, the petitioner moved for a new trial claiming, inter alia, ineffective assistance of counsel. In response, the State asked the superior court to compel a waiver of the attorney-client privilege so that it could interview petitioner’s trial counsel in order to reply to the motion. Trial counsel informed the superior court of his reluctance to reveal privileged information absent a written waiver from the petitioner. The superior court ordered the petitioner to execute a written, limited waiver of his privilege. The court predicated hearing the petitioner’s claims upon receipt of the written waiver. The petitioner refused to execute such a waiver and filed the instant petition in this court. We turn, first, to the attorney-client privilege.

The attorney-client privilege is not absolute. See McGranahan v. Dahar, 119 N.H. 758, 764, 408 A.2d 121, 125 (1979); Law Off. of Bernard D. Morley v. MacFarlane, 647 P.2d 1215, 1220 (Colo. 1982). Furthermore, “a client may waive protection of the privilege, either expressly or impliedly.” Tasby v. United States, 504 F.2d 332, 336 (8th Cir. 1974), cert. denied, 419 U.S. 1125 (1975). This court has recognized the concept of implied waiver. See Aranson v. Schroeder, 140 N.H. 359, 369-70, 671 A.2d 1023, 1030 (1995). Implied waiver occurs when the asserting party has put the otherwise privileged communications “at issue” in the present dispute. See generally Hunt v. Blackburn, 128 U.S. 464, 470-71 (1888); Mountain States Tel. & Tel. v. DiFede, 780 P.2d 533, 543-44 (Colo. 1989) (outlining the traditional formula used to find implied waiver). In Aranson, we limited “the extent of an at-issue waiver of the attorney-client privilege to circumstances in which the privilege-holder injects the privileged material itself into the case.” Aranson, 140 N.H. at 370, 671 A.2d at 1030 (quotation omitted).

We hold that claims of ineffective assistance of counsel, whether brought in a motion for new trial or in a habeas corpus proceeding, constitute a waiver of the attorney-client privilege to the extent relevant to the ineffectiveness claim; the waiver is a[*891] limited one. State v. Walen, 563 N.W.2d 742, 753 (Minn. 1997). In so holding, we join those jurisdictions recognizing a similar concept. See, e.g., Tasby, 504 F.2d at 336; State v. Thomas, 599 A.2d 1171, 1177-78 (Md. 1992) (citing a compendium of supporting authority also recognizing concept), rev’d, on other grounds, 616 A.2d 365 (Md. 1992), cert. denied, 508 U.S. 917 (1993); Walen, 563 N.W.2d at 752 (citing numerous supporting cases).

Claims of ineffective assistance of counsel go to the core of attorney-client communications. Such claims challenge the lawyer’s representation of the client. See N.H. R. PROF. CONDUCT 1.6(b)(2). Both the Rules of Professional Conduct and the Rules of Evidence contemplate removing the protective veil of privilege when a client challenges the lawyer’s representation. See id.; N.H. R. Ev. 502(d)(3). Fairness dictates a limited waiver; efficiency dictates it occur automatically. See Walen, 563 N.W.2d at 753.

Because of our holding today, we vacate the superior court’s order to the extent it requires the petitioner to execute a written waiver of his attorney-client privilege. Such an order is unnecessary. The filing of a motion for ineffective assistance, as a matter of law, acts as a limited waiver of the attorney-client privilege. Trial counsel does not need an express written waiver once the former client has challenged the effectiveness of counsel’s representation. In addition, we note that the superior court has authority to issue orders compelling witness testimony under appropriate circumstances. See Super. Ct. R. 44.

Finally, we need not address the merits of the petitioner’s substantive new trial arguments in the instant petition. Neither a petition for a writ of prohibition nor a petition for a writ of mandamus is the proper vehicle for lodging such challenges. Cf. State v. Superior Ct., 116 N.H. 1, 2, 350 A.2d 626, 627 (1976) (describing function of writ of prohibition); Bois v. Manchester, 104 N.H. 5, 8, 177 A.2d 612, 614 (1962) (describing function of writ of mandamus and adding that mandamus does not lie where any other adequate relief exists). Moreover, the superior court has not yet ruled on the motion. Thus, any ruling by us would be premature. See Appeal of Tancrede, 135 N.H. 602, 604, 608 A.2d 1308, 1309 (1992).

Accordingly, we deny the petition in all respects except to the extent it requests that the petitioner not be required to execute a written waiver of the attorney-client privilege. We vacate the order of the superior court mandating that the petitioner execute such a[*892] written waiver. Further proceedings in the superior court shall be conducted in accordance with this opinion.

Superior court order vacated in part; petition denied in all other respects.

All concurred.