Johnnie Tasby v. United States
504 F.2d 332 (1975)
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Rule of Law:
A client waives the protection of the attorney-client privilege when they attack their attorney's competence in a legal proceeding, thereby putting the substance of their confidential communications directly at issue.
Facts:
- Johnnie Tasby was on trial for interstate kidnapping.
- During the kidnapping trial, Tasby's attorney, Mr. Peek, advised him not to testify.
- A record was made in court where Tasby stated under oath that he had been advised against testifying but still wished to do so.
- Tasby proceeded to testify in his kidnapping trial.
- Later, in a separate post-conviction proceeding, Tasby sought to have his kidnapping conviction overturned based on ineffective assistance of counsel.
- During the post-conviction hearing, Tasby testified under oath that Mr. Peek had never advised him not to take the stand.
- Tasby further testified that Mr. Peek coerced him into testifying by threatening that he would receive a sentence of 25 years to life if he did not.
Procedural Posture:
- Johnnie Tasby was convicted of interstate kidnapping by a jury in federal district court (the trial court of first instance).
- Tasby, as appellant, appealed the kidnapping conviction to the U.S. Court of Appeals for the Eighth Circuit, which affirmed the conviction.
- Tasby then filed a petition for post-conviction relief (a § 2255 motion) in the district court, alleging ineffective assistance of counsel.
- After a hearing, the district court denied Tasby's petition.
- Tasby, as appellant, appealed the denial to the Eighth Circuit, which affirmed the district court's decision.
- The United States then charged Tasby with making a false material declaration (perjury) in federal district court, based on his testimony at the § 2255 hearing.
- A jury found Tasby guilty of the perjury charge.
- Tasby, as appellant, now appeals his perjury conviction to the U.S. Court of Appeals for the Eighth Circuit.
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Issue:
Does the attorney-client privilege prevent an attorney from testifying against a former client in a perjury prosecution, when the client's allegedly perjurious statements concerned the attorney's advice and were made during a prior proceeding where the client claimed ineffective assistance of counsel?
Opinions:
Majority - Chief Judge Gibson
No, the attorney-client privilege does not prevent the attorney's testimony under these circumstances. A client impliedly waives the privilege by attacking their attorney’s professional competence, which calls into question the substance of their communications. Tasby breached the confidentiality of the relationship by alleging his attorney provided ineffective assistance. He cannot use the privilege as a sword to make allegations of misconduct and then as a shield to prevent the attorney from refuting those allegations with the truth. When a client calls into public question the competence of his attorney, the privilege is waived.
Analysis:
This decision reinforces the "at-issue" waiver doctrine of the attorney-client privilege, also known as the self-defense exception. It establishes that a client cannot selectively disclose or misrepresent communications to gain a legal advantage, such as overturning a conviction, while simultaneously using the privilege to block the attorney from presenting evidence to the contrary. This prevents the privilege from being perverted into a tool for committing perjury and ensures that courts can access the truth when a client puts the attorney's conduct at the center of a legal claim.
