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 my client, or if the client waives the privilege.
Miranda thinks it’s okay to make a record, in anticipation of a possible future claim to the contrary, that the client’s rejection of the plea offer was against the advice of counsel. (See her comments to Gideon’s post of yesterday).

Gideon, Scott, and Young Shawn Matlock (commenting on Scott’s post) all think it’s okay to tell a court, when a client is rejecting a plea offer, that you have discussed the plea with the client. Scott points out that we have an ethical duty to convey a plea offer to the client (true) so that the fact that we have done so reveals nothing (non sequitur).

The Woman in Black’s position appears to be closer to mine: “it rarely serves any purpose to go into any detail about rejection of plea agreements, unless you are, with your client’s permission, trying to impress upon them the just-ness of your defense” (in comments to Gideon’s post of today).

If “any detail” means anything more than “no, thank you,” I agree with her. It rarely serves any purpose to do anything more, when a client is rejecting a plea offer, than “no, thank you.”

I can envision circumstances in which it might be proper to say more than “no, thank you” because doing so would move — for example, “we’re rejecting the State’s offer because my client is innocent,” if that might make a difference to how decision-makers view the case (“impress upon them the just-ness of your defense”).

But I would think carefully about what effect any public statement would have on the client’s case, and only make it if I knew it would help (rather than simply “not hurt”) the client.

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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