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Earlier this week Matt Kaplan argued an appeal before the D.C. Court of Appeals which raises important issues regarding the extent to which the results of an investigation by a criminal defendant’s own attorney can be used against that defendant at trial.

Mr. Kaplan’s client’s initial conviction for murder and related offenses was overturned after the trial judge ruled that the client’s attorney at that first trial had been gravely deficient. However, to make his ineffective assistance of counsel claim, the client was required to allow the government access to his trial attorney’s files, files that would normally be privileged and protected from disclosure. At the client’s second trial, which also resulted in a conviction, the government used information obtained from the first attorney’s confidential files–information obtained by defense investigators–against the client.

The issue now on appeal is whether this was permissible. Citing Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003), a federal case that addressed a similar situation, Kaplan argued that it was improper to allow the government to use confidential materials obtained by the defense against the defendant on a retrial. The prosecution only had access to these materials because, through no fault of his own, the client’s constitutional right to a fair trial was violated at the first trial.

The case is Waters v. United States, No. 19-CF-235. Matthew B. Kaplan is the principal of The Kaplan Law Firm. A video of the oral argument is available here. The D.C. Court of Appeals is the highest court in the District of Columbia court system. The court will issue its decision in the coming months.