Ethics and Defensive Lawyering: Open Warfare!
We can take issue with the extent of his comments or perhaps his use of certain terminology, but I can't say I blame him for making a record during the canvass that his client's rejection of the plea agreement was against the advice of counsel. (If that's indeed where the comments came from). In a case like this, where Gerace obviously believes his client will fare much worse after trial, noting his dissent on the record IS a kind of cover his ass move, but it also should avoid other issues and complications down the road (like a habeas or a motion to fire his attorney).
In response, I wrote:
You say you "can't blame him" for making it known that rejection of the plea was against advice of counsel. By saying that, you put the lawyer's interest ahead of the defendants. There are few things more blameworthy than a lawyer placing his own interests above the client. This isn't a game of comparables. When you're a lawyer, you have a duty to act in your client's best interests, not your own.
Then all hell broke loose. Gideon asked whether I thought it was acceptable to tell the Court that "I have discussed with my client the state's offer and the pros and cons of accepting it and it is his decision to reject the offer at this time," and I took the position that Gid's sentence was appropriate as it did not compromise his client. And Gideon came back with this post (and using the word "maelstrom", just to prove how erudite he is) to sucker punch Mark, the Texas Tornado) and I (referred to generically as "Scott" because I am undeserving of a really cool nickname).
After another several rounds on the details, Mark Bennett, a/k/a the Texas Tornado, rolled into town to tell us we ALL wrong. Per his 2 cents, possibly 3, Mark opined that "Everything I tell my client is privileged. The fact that I have discussed a plea offer with my client is privileged," making us all ethically challenged. Frankly, this is a great debate and one of the finest blawg moments I've seen. But enough of my kvelling. Back to Mark.
Mark, you ignorant slut (okay, I stole that line), inasmuch as we have a legal duty to inform our clients of any plea offer and advise them on it, the statement that we have done so reveals nothing. As a matter of practice, I don't inform the Court, unless directly asked, that I've discussed a plea offer with a defendant. I simply tell the Court of the decision to accept or reject it, usually by the words, "Your Honor, there will be no plea."
However, in responding to Gid's question of whether his proposed language constituted (in my view) an ethical violation, my answer was no. It's still no. Stating in open court that I have fulfilled a legal duty owed to a client does not disclose a privileged communication. In fact, the Court has a duty to oversee my representation and make certain that I have not failed to fulfill my duty, so the Court's query is appropriate. Gid's response is appropriate, and we all go about doing our jobs. Gerace's verbal vomit, on the other hand, was not appropriate. Or ethical, by my analysis.
But let's turn to the really fascinating aspect of this debate, Miranda's position that a lawyer's CYA statement, in anticipation of a writ of habeas corpus or ineffective assistance of counsel (IAC) claim, justifies doing SOMETHING to protect the lawyer. I feel confident that Mark and I will agree that this is blasphemy.
What smacked me upside the head was Miranda's, and to some extent Gid's, suggestion that lawyers should engage in defensive lawyering for fear of an IAC claim. Why? If a defendant later claims that you failed to represent him adequately, so what? Will you melt? Will your self-esteem crumble? Will your friends and neighbors shun you? Who cares?
I can't imagine being motivated to compromise a client in any respect for fear that he may later claim I was less than perfect. In fact, should a client have a reason to question my representation, I will not only encourage it, but help the client in any way I can. Perhaps there was something I should have done that I didn't. Then the client DESERVES the ability to win his point. Even if I was perfect, it's no skin off my nose to help him out to the extent I ethically can. I won't lie for him, or violate ethics or the law, but I will cooperate in any way possible to assist my former client. For God's sake, I'm not the one going to jail, why would I become part of the gang trying to put my client there!
I've written about this issue in the past. There's no shame in being human, in being imperfect. Why do lawyers think that their ethical duty stops the moment their inchoate self-interest kicks in? I don't mean to suggest that Miranda is unethical, but that her concerns and rationalizations for Gerace's mouth are misguided. While I won't take it as far as the Texas Tornado, I similarly won't side with the brothers and sisters who think it's okay for a lawyer to cover his a** (this is a family blawg, and I just prefer to keep it clean). Criminal defense lawyers put their a** on the line every day. It's what we do. If you're afraid to do so, then this isn't for you.
There are no set of circumstances where it's okay to compromise your client in anticipation of some potential IAC or habeas claim. Note that I used the words "anticipation" and "potential". I am not talking about the situation where a client, post hoc, makes a false accusation of unethical or illegal conduct on the part of his former lawyer. That's a different situation, and on that needs to be discussed. But not at the moment, as my tee time awaits. You've got a few free hours, ol' Texas Tornado. Do your worst!
9/19/2007 6:26 PM
Defending People Blog wrote:
Every man needs a code to live by. When it comes to protection of the attorney-client privilege, it appears that my code puts me on the radical fringe. Under my code, everything I tell my client is privileged. I will only disclose it if disclosure helps m
9/19/2007 6:25 PM
Defending People Blog wrote:
After Gideon's two posts (here and here), Scott Greenfield's two posts (here and here), and my two posts (here and here), here's how I see attitudes about the revelation of communications from the lawyer to the client shaking out:Some (edit: but not Gideo
8/16/2007 6:57 AM
a public defender wrote: