The point starts out on a false premise.  Mark takes the view that stating to a judge that you have transmitted a plea offer to a client is a privileged communication.  It’s not.  It never had been, and no other lawyer takes such an extreme view.  But by using that as his starting point, Mark taints all other lawyers (except him) with violating privilege.  That’s convenient, but clearly wrong.

No one ever suggested that revealing privileged communications were permissible “if the revelation would not hurt the client.”  I never suggested that revealing privilege communications was permissible.  That’s the problem with straw-man arguments, they fail at the start and just go downhill from there.  If Mark’s going to attribute an opinion, he has to come a whole lot closer to the truth to maintain credibility.  He went way off the mark on this one.

My point was clear (not to mention stated numerous times here, at A Public Defender and at Mark’s blawg).  It is not unethical to state anything that does not reveal a confidential or privileged communication, or compromise your client’s position, but the better practice is to say nothing with regard to communications if at all possible.  The only caveat (and this applies only to the better practice, not to disclosure of privileged communications which cannot be disclosed under any circumstances) is that it is unwise, and unhelpful to your client, to needlessly antagonize the judge by refusing to answer a question as to a NON-PRIVILEGED communication. 

Mark also did something similar to Gideon, where he framed Gid’s opinion this way:

Some believe that it is okay for a lawyer to reveal such privileged communications to pretermit a possible future claim of ineffectiveness — to “make a record” against the client.

While Gideon is of the view that making a record of what happened is appropriate (whereas I say that the less said, the better), he did not argue that the purpose was to “pretermit a possible future claim of ineffectiveness.”  That was Miranda’s position, not Gid’s, and even Miranda abandoned it when the error of her thinking was pointed out,  Gideon never suggested the practice of “defensive lawyering,” which I define as putting the lawyer’s interest ahead of the clients’, and we are all in agreement that defensive lawyering is wrong and intolerable.  I really can’t explain why Mark would attribute that position to Gideon, but it’s just not accurate.

And what about Mark’s view?  As I said before, his position provides a nice bright line test: Refuse to say anything no matter what.  My problem with this extreme position is that there are questions posed by a judge that are fully appropriate, such as “did you tell the defendant about the prosecution’s plea offer,” and the refusal to respond to such a fully appropriate question is going to piss off the judge, and rightfully so.  Mark is willing to take the heat for antagonizing the judge, which is fine when the judge steps over the line.  But when the judge is in the right, antagonizing her harms your client’s cause.  Harming the client is what we must NOT do, and extreme positions that harm the client do not make a criminal defense lawyer “tougher”, they make a criminal defense lawyer dangerous. 

So let’s recap:

1.  Informing a defendant of a plea offer is an obligation of the criminal defense lawyer.
2.  Responding to a judge’s question of whether you have told your client of a plea offer does not disclose any privilege whatsoever.  Going beyond this, and into any of the substance of what was said between lawyer and client does reveal privilege.
3.  The better practice is to tell a judge that you, as a criminal defense lawyer, always fulfill your obligations to your clients, which though non-responsive, will satisfy most judges and end the inquiry.
4.  Do not antagonize a judge by refusing to respond to appropriate inquiries, as this will cause needless harm to the defendant’s cause.
5.  If the judge oversteps his bounds, then you are obliged to refuse to respond, and whatever antagonism that may result cannot be avoided.  That, as Mark says, is part of the job.