Covering Your Ass

There’s an interesting discussion going on over at Gideon’s A Public Defender about lawyers covering their asses (an effete small-town judge once threatened to report me to the bar for using that expression in a letter to former counsel) by explaining to the public or the court that their clients had considered and turned down a plea offer.

New York criminal-defense lawyer Scott Greenfield argues (quite correctly) that a lawyer should not place his own interests above his clients and announce that the client, in turning down a plea agreement, “is being very foolish in my view. He was given a plea bargain that’s not a lenient plea bargain, but under the circumstance, if he goes to trial, he will get a lot more,”

Gideon replies:

Scott, I completely agree with you, but what about this limited statement on the record:

“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”.

Scott thinks that’s perfectly appropriate, that the lawyer has done nothing to reveal a privileged communication. He thinks that this avoids the problem.

Miranda says:

It’s preferable that anyone reading a transcript in the future will understand that (a) I advised my client of all the usual stuff; and (b) I advised him/her to go one way or the other.

Let me be the dissenting voice here. Scott is wrong. Miranda is way wrong. I’ve written about this before — it’s a common ethical violation.

Everything I tell my client is privileged. The fact that I have discussed a plea offer with my client is privileged. The advice that I gave him regarding that offer is way privileged.

If you want to make a record to prevent your client from having a chance of prevailing on a writ of habeas corpus, first ask yourself whether it is for your own sake or for his. Then, if you think that there is no conceivable way your client will suffer because you make a record, don’t do it publicly. Do it privately — in a letter to the client, with a copy to your file. Nobody but you and the client needs to know.

Miranda asks:

Aren’t we happy to inform the court when we’ve advised our client of a, b and c and as a result, he/she is choosing to do X? Why is this situation different?

This situation is no different. Assuming that the client hasn’t consented to the disclosure (why would a client?), both situations involve violations of the attorney-client privilege and, in Texas at least, violations of the disciplinary rules of professional conduct. (Read your own state’s rules to see if there’s an applicable exception.) There’s no exception to the privilege for “things said to the judge” or “things the judge wants to know” any more than there is an exception for “things that benefit the lawyer.”

Because it’s a clear ethical violation, not all of us are happy to do it. In fact, I once told a federal judge who asked an intrusive question about whether I had told my client something that I couldn’t answer the question.

Lawyers keep committing this ethical violation not because the rules are unclear, but rather because it’s the way they’ve always done things, and the way they’ve always seen things done. But it never has been right, and never will be.

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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7 Responses to Covering Your Ass

  1. Matlock says:

    Ok, I understand what is being said here, but I have a question. If it is an ethical violation to comment on the fact that you spoke to your client about a plea agreement, how does that jive with the fact that we have an ethical obligation to take any reasonable offer to our client? The logical extrapolation would be that 1. an offer was made, 2. the client/ attorney chose or pursued a course of action contradictory to that offer, 3 therefore the offer was rejected.
    Also, I’m not sure I agree with you on not commenting about a plea offer. You are not disclosing privileged material. The action pursued speaks for itself.

  2. Malum says:

    Mark, I am glad that you explained your position on this and you bring up several valid points. I also appreciate the alternative response you proposed. i was in a similar situation on Monday and had mixed feeling about it when I chose not to respond to the question.

  3. Scott Greenfield says:

    Ah, boys. It ain’t over till the fat lawyer sings. We’re still up and kickin’ on this one.

  4. Scott Greenfield says:

    and by the way, how about a little link to Simple Justice in your piece there, ol’ Texas Tornado? This is a floating crap game, and people have to know where to put their ante up.

  5. David Tarrell says:

    My former boss (I quit my pd job a month ago and struck out on my own) advised us, in this situation or in one in which the client chose to testify against your advice, to bring the court reporter in without the judge or the pros and put it on the record that he or she was disregrading your recommendation. To me, however, this seemed like partially selling out your client because when you asked this, everyone talked about it and without a doubt the judge knew you were “covering your ass” somehow and your client looked both guilty and beligerent.

    Isn’t the right way to do this with a letter? That way it’s hidden from public view unless the client waives the privilege with a complaint and you are covered without having to blatantly cover your ass in court which makes your client look bad even if the judge is left out of the courtroom?

  6. Daniel Quackenbush says:

    So, many defendants are not actually paranoid when they think their defense attorney has or might sell them out? Thank goodness for attorneys like Mark Bennet.

  7. Andino Lanyer says:

    I agree with 3:29, the accused is in a bad enough position without having to suspect that his lawyer is busy sabotaging his habeas. What’s more, at least in the Fifth Circuit, this type of claim requires independent and credible evidence that the lawyer never communicated the plea offer to his client — a standard few petitioners can meet. My experience has been that many defense attorneys called as witnesses decades later will throw themselves on their swords for their former clients. I applaud them.

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