The opinion
DOCUMENT
ELECTRONICALLY FILED
UNITED STATES DISTRICT COURT DOCH
SOUTHERN DISTRICT OF NEW YORK DATE FILED: 4/13/2023
LAWRENCE BROWN,
22-CV-9146 (NSR)
Petitioner.
Vv. 14-CR-00509 (NSR)
UNITED STATES, ORDER
Respondent.
NELSON S. ROMAN, United States District Judge
Petitioner Lawrence Brown (“Brown” or “Petitioner”) was charged in a four count
indictment with having committed two Hobbs Act Robberies, in violation of 18 USC § 1951, and
with brandishing a firearm during crimes of violence, in violation of 18 USC § 924(c). Brown was
accused of committing two separate robberies; one on November 14, 2013 at a Rite Aid Pharmacy
and one on April 4, 2014 at a Shop Rite Supermarket. After a jury convicted Brown of two counts
of robbery and brandishing a firearm in furtherance of committing a crime of violence, he was
ultimately sentenced to a term of 303 months; the Second Circuit modified this term to 300 months
following Brown’s appeal of his sentence. (ECF No. 99.)
On October 24, 2022, Petitioner Lawrence Brown, appearing pro se, and currently
incarcerated in F.C.I. Ray Brook, filed a motion under 28 U.S.C. § 2255 (“§ 2255”), challenging
his conviction and sentence. (See ECF No. 101.) Brown then filed a supplemental motion under §
2255, asserting the additional ground for relief that his trial counsel failed to advise him of his
right to testify in his own defense. (ECF No. 109.) The Government submitted an initial response
and application to this supplemental motion to seek an affidavit from Brown’s trial attorney, given
that the Government does not have access to any facts pertaining to Brown’s communications with
his trial attorney. (ECF No. 111.) The Government’s application thereby seeks information that is
protected by attorney-client privilege unless Brown waives this privilege. (Id.)
As the Government recognizes, the typical practice of courts in this Circuit is to require
that the Petitioner formally waive his attorney-client privilege before proceeding further on a §
2255 motion implicating advice of counsel, even though a Petitioner’s claim for ineffective
assistance of counsel usually constitutes an implicit waiver of attorney-client privilege. See United
States v. Cruz-Polanco, No. 21 CR. 709 (JPO), 2023 WL 119438, at *1 (S.D.N.Y. Jan. 6, 2023)
(ordering that the pro se petitioner on a § 2255 motion implicating advice of counsel sign a consent
form waiving attorney-client privilege and noting that, if the consent form was not returned
executed, the Court would deny the ineffective assistance of counsel claim); United States v.
Ulbricht, No. 14 CR. 68 (LGS), 2019 WL 5957163, at *1 (S.D.N.Y. Nov. 13, 2019) (likewise
ordering that the petitioner on a § 2255 motion implicating advice of counsel sign a consent form
waiving attorney-client privilege and noting that, if the consent form was not returned executed,
this may be grounds for the Court to deny the § 2255 motion). Thus, the Court orders as follows:
WHEREAS the Court is cognizant that, absent court order or informed consent, ethical
concerns may inhibit Counsel from disclosing confidential information relating to a prior client
even in the absence of a privilege, see, e.g., ABA Standing Comm. on Ethics and Prof.
Responsibility Formal Op. 10-456 (July 14, 2010), Disclosure of Information to Prosecutor When
Lawyer's Former Client Brings Ineffective Assistance of Counsel Claim,
IT IS HEREBY ORDERED that Counsel may discuss the issues raised in the supplemental
§ 2255 motion with the Government and, if necessary and appropriate, give sworn testimony, in
the form of an affidavit or otherwise, addressing the allegations of ineffective assistance of counsel
made by Petitioner; it is further
ORDERED that Petitioner execute and return to this court by May 15, 2023, the
accompanying “Attorney-Client Privilege Waiver (Informed Consent)” form. Petitioner must
return the document to the court by May 15, 2023. The failure to return the document shall result
in the denial of the supplemental § 2255 motion, on the ground that Petitioner failed to authorize
the disclosure of information needed to permit the Government to respond to this supplemental
motion; and it is further
ORDERED that the briefing schedule for petitioner’s supplemental § 2255 motion
established by the Court on April 11, 2023 (ECF No. 110) is stayed, pending Petitioner’s response
to this Order.
The Clerk of the Court is kindly directed to mail a copy of this Order to pro se Petitioner
Lawrence Brown at the address listed on the civil docket and show service.
Dated: April 13, 2023 SO ORDERED:
White Plains, New York
NELSONS.ROMAN
United States District Judge
Attorney-Client Privilege Waiver (Informed Consent)
To: Lawrence Brown
You have made a supplementary motion under Section 2255 of Title 28, United States
Code, to have your conviction set aside on the ground that you received ineffective assistance from
your former lawyer, Paul Peter Rinaldo (referred to in this form as “your former attorney” or
“Counsel”). The court has reviewed your papers and determined that it needs to have sworn
testimonial statements from your former attorney in order to evaluate your supplementary motion.
By making this supplementary motion, you have waived the attorney-client privilege you
had with your former attorney to the extent relevant to determining your claim. This means that if
you wish to press your claim of ineffective assistance, you cannot keep the communications
between yourself and your former attorney a secret—you must allow them to be disclosed to the
Government and to the Court pursuant to court order. The Court has already issued an Order (copy
attached) ordering your former attorney to give such testimony, in the form of an affidavit. This
Informed Consent form is designed to ensure that you fully understand and agree to this.
Specifically, if you wish to proceed with your supplementary motion to set aside your
conviction on the basis that you received ineffective assistance of counsel, you must sign this
statement and return it to the court. The form constitutes your authorization to your former attorney
to disclose confidential communications (1) only in response to a court order and (2) only to the
extent necessary to shed light on the allegations of ineffective assistance of counsel that are raised
by your motion.
You should know that if you sign this authorization, you run the risk that your former
attorney will contradict your statements about his representation of you. However, you should also
know that the court will deny your motion if you do not authorize your former attorney to give an
affidavit in response to the Court's attached Order.
You must return this form, signed by you and notarized, within thirty (30) days from the
date of the Court's Order directing your former lawyers to give testimony. If the Court does not
receive this form, signed by you and notarized, within that time, the court will automatically deny
your supplementary motion.
NOTARIZED AUTHORIZATION
I have read the Court's Order dated ___________ and this document headed Attorney-
Client Privilege Waiver (Informed Consent). I hereby authorize my former attorney, Paul Peter
Rinaldo, to comply with the Court's Order by giving testimony, in the form ordered by the Court,
relating to my motion to set aside my conviction on the ground of ineffective assistance of counsel.
This authorization allows my former attorney to testify only pursuant to court order, and only to
the extent necessary to shed light on the allegations of ineffective assistance of counsel that are
raised by my supplemental motion.
Dated: _______________________
Sworn to before me this _____ day of _______________, 20___
_____________________________________
Notary Public