Miranda wrote:
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!
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The maelstrom that is cover your ass-ery
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You’re equating “creating a record” to “cya”. I don’t think they’re the same. In some cases they may be, but not always.
If by “creating a record” you mean stating that the defendant’s decision was against advice of counsel, then you betcha. If you mean stating the you informed the defendant of the offer and he has rejected it, then. But Gid, this is old turf.
When you write about protecting the defendant by making a record about how everything was done properly, I fail to see what that does for the defendant. It covers the lawyer, but that’s about it. It’s not wrong (IMHO) provided it’s limited as already discussed, but I can’t see how you’re doing anything for your client. So explain yourself, dammit.
SHG
Ok, so are you saying that if I take a second before trial and doing my little bit with my client on the record that covers the fact that 1.) the state made offer X, 2.) that I have gone over said offer with my client, 3.) I have answered every question he has about the offer, 4.) my client feels he is adequately counseled on the offer and all potential ramifications, 5.) and my client has decided to reject the offer, that is not ok?
I think if you go over the facts of the offer and the FACT that there are ramifications to it, then you are ok. I do think that if you start going through the ramifications on the record in public that the privilege is broken. So I guess I would agree with Gideon that it would depend on exactly what was discussed on the record, as opposed to whether it was done at all, as Mark suggests.
Scott,
Still wrong. And you’re setting a bad example for young Shawn.
We have a duty to discuss plea offers with our clients, but it’s a duty to the clients, not to the court. Whether we have done our duty is none of the court’s business. A judge isn’t asking the question because he has your client’s best interests at heart, but rather because he’s trying to make a record against your client.
You’ve misread me. I say that IS okay (meaning ethically permissible), though not necessarily preferable. It is sufficient to state simply that your client has rejected the offer. If pressed (and this is where Mark and I disagree), it is permissible to state that you have fulfilled your legal duty to inform your client of any offer and advise him about it. It is NOT permissible to tell the court what your advice was, since that by definition discloses (1) privileged communications and (2) the basis for your client’s determination to accept or reject the offer. That’s nobody’s business but your clients. And if he later says you told him baloney, so what?
As for “going over” the FACT that there are ramifications to the offer, I don’t know what you mean. Are you saying that you want to say the words aloud in court, “Your Honor, there are ramifications to this offer, ya know.” If so, why? You are stating the obvious, and nobody demands that lawyers make noise for no particular purpose.
SHG
Of course the judge isn’t asking because he has our client’s best intersts at heart, but that doesn’t mean he lacks the authority to ask and get an answer. There are plenty of those annoying details that we go though, where judges rehabilitate situations to cover everyone else’s butts but pretend that its for the benefit of the defendant.
As for setting a bad example for young Shawn, I think I’m entitled to keep my vices private. That’s what you’re talking about, right? BTW, I shot an 74 today. Only played 9. Ouch.
SHG
So if a Judge asks you if you’ve informed the client of the maximum penalty he could face, you don’t respond?
That he doesn’t have our client’s best interest at heart doesn’t mean he lacks the authority to get an answer, but it does mean that we should not answer his inquiries unless answering benefits the client, because there is nothing that gives him that authority.
I would bet that Young Shawn is perfectly able to find his way to the golf course (a good walk, ruined) without any help from you.
That would be a stupid question — of course I tell my clients what the penalty range is. So I would respond, “With all due respect, your honor, my communications with my client are privileged under the Texas Disciplinary Rules of Professional Conduct and the Texas Rules of Evidence.”
So you wouldn’t respond to the court’s question?
Come on. Do we have to go through every theoretical thing that could possibly be asked. Mark says just tell the judge that it’s privileged. I say ask yourself the question: Does this reveal any privileged communication, client confidence or in any way compromise your client? If not, then it’s not unethical. But, like Mark, just because someone asks doesn’t mean you have to answer.
How about, “Your Honor, I scrupulously adhere to all of my professional responsiblities in my dealings with all of my clients.” In 25 years, no judge has ever asked me if I informed my client what the maximum penalty could be, but if he did, I would respond along these lines. But I have had judges who have asked me about particular communications with my client that were none of his business, and I’ve told the judge that his question is inappropriate and I cannot divulge privileged communications with my clients.
That would be my response.
I mostly agree, but what we tell our clients (whether we’re required to or not) is no less a privileged communication than what they tell us. In fact, there are more circumstances in which the rules require us to reveal communications from the client than to the client.
Umm, it’s part of the standard canvass when pleading guilty.
Or are we talking solely about when not pleading guilty?
Pleading guilty is entirely different than rejecting a guilty plea. We call it an allocution (you call it a canvass) which includes all the questions necessary for a judge to hold that the plea is knowing, voluntary and intelligent (though intelligent is observed mostly in the breach). But that has no place in a plea offer rejection. Neither defendant nor defense attorney has any responsibility to explain why a plea is rejected, and the court has no authority to inquire beyond whether the plea offer has been transmitted and whether it is accepted or rejected. Not that judges don’t stick their noses where they don’t belong, but they have no right to do so, and we have no duty to answer every question a judge puts to us when he going beyond his authority.
You have to distinguish acceptance of a plea from rejection of a plea.
I’m only talking about the latter.
When the client is accepting a plea offer, it’ll generally be okay to reveal what you’ve told him because it furthers one of the goals of the representation (i.e. getting the judge to accept the plea).
Well obviously. I still disagree with Mark that when rejecting an offer, you can’t say anything. I think you can say that the client has been advised of the offer and that the offer is being rejected.
It amazes me when I find myself in the middle ground. I’m so used to being on one end or the other. We are in agreement about this, Gid, and while I understand Mark’s point, which has the benefit of being a bright line test, I think it’s a bit extreme and, in all likelihood, needlessly antagonistic. I more than happy to go to war, and I would do so in a flash if the judge went into why the defendant would reject such a wonderful plea offer,” but I try to avoid being needlessly antagonistic.
Your statement, that the client has been advised of the plea offer and rejects it, discloses nothing beyond what you (and I, and even Mark) as attorneys are required to do. Hence, it does not run afoul of any ethical proscription and it is not, I might add, a CYA statement.
Well that’s settled then 😀
Privilege Breakdown
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
More on Covering Your Ass
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