A Too-Common Ethical Violation

A lawyer is in court with his client. The prosecutor has made a plea offer to the lawyer, who thought it was something the client should have accepted. The lawyer has conveyed the offer to the client, and tried to convince him to take it. The client has rejected the offer.

Often we will see the lawyer put the client on the witness stand in open court, in front of the judge and the prosecutor, to confirm that the lawyer conveyed the offer to the client and that the client rejected it. The lawyer will nonchalantly justify this as “making a record” so that the client can’t come back later and complain (in a writ of habeas corpus or grievance) that he didn’t know about the plea offer. The lawyer will be nonchalant about it because this is the way he’s always done things, and the way he’s always seen things done.

Because this is how it’s always been done, many lawyers have never considered the ethical implications of putting the client on the stand to eliminate the possibility of a writ or grievance. It is, however, a huge ethical violation.

The ethical rules require a lawyer to convey any plea offer to his client, but whether he has done so or not is nobody’s business but the lawyer’s and the client’s. What the lawyer has told the client, and what the client has said in return, is confidential. The rules do not provide any exceptions allowing the lawyer to try to prevent a potential writ or grievance by revealing confidential information.

Worse than the violation of the rules, when the lawyer puts the client on the stand for this reason he clearly sends the message to the judge, to the prosecutor, and (most importantly) to the client that he and the client are not on the same side.

There is always a risk to putting a client on the witness. There is no telling how what he says on the record might come back against him. A competent lawyer won’t put his client on the witness stand unless the possible benefit to the client outweighs the risk. When a lawyer is putting his client at risk to cover the lawyer’s ass, there is a conflict of interest and he is putting himself ahead of his client. He needs to stop representing that client.

What should the lawyer do if the client has, against the lawyer’s best advice, declined to accept an offer that the lawyer thinks should have been taken?

Nothing. The lawyer has done his job by conveying the offer to the client. He has gone beyond his duty by trying to convince the client to take the offer. Whether to reject or accept an offer is one of the few decisions that only the client gets to make.

If the lawyer wants to make a record of the discussions, he can do so by conveying the State’s offer in writing and getting the client’s signature on a copy of the letter for the lawyer’s own file. Nobody else needs to know.

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About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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3 Responses to A Too-Common Ethical Violation

  1. lawyerinphoenix says:

    I agree with your comments. In Maricopa County, Arizona (Phoenix), as a result of a Court of Appeals decision, (Donald), commissioners have been directed to directly ask the accused whether or not the plea offer has been conveyed, whether the accused understands it, what the deadline is, and what benefits the accused will receive if accepted. To many, it is judicial pressure to plead. (In Donald, the Court of Appeals suggested that the appropriate remedy for a failure to convey a plea offer was to have the state re-offer the plea. Obviously, neither judges nor prosecutors liked this – hence, the “Donald hearing” as it has become known). It stinks of a cabal between judge and prosecutor. As a result of much bitching by the defense bar, however, it appears that these thinks may go away. As you say, its nobody’s business but lawyer and client.

  2. Pingback: Covering Your Ass : Defending People

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