Defending People

the tao of criminal-defense trial lawyering

The Ethical Masochist’s Dilemma

Sup­pose that you have a client. The client, after thor­ough con­sul­ta­tion with you, wants you to take some action. That action is in the best inter­est of the client, is legal, and is ethical.

You do it, right?

Now sup­pose that the action is not in the client’s best inter­est, but is legal and ethical.

Again, you do it. It’s not your call.

Now sup­pose that the action is in the client’s best inter­est and is eth­i­cal but is illegal.

You don’t do it.

Okay. Now it’s in the client’s best inter­est and legal, but is unethical.

Do you do it? No, of course not. Your ethics trump even the client’s interests.

But wait. Sup­pose that the only per­son who might be harmed by the eth­i­cal vio­la­tion is the client, and that you’ve advised the client of this pos­si­ble harm, and the client still insists that you take the action.

What do you do?

A ridicu­lous hypo­thet­i­cal? Unimag­in­able? Highly spec­u­la­tive? Nope. An every­day sit­u­a­tion in fed­eral crim­i­nal defense.

There are a few pos­si­ble answers: advise the client to waive the 2255 (ethics be damned); advise the client to refuse the plea (client be damned); refer the client to con­flict coun­sel (to advise the client inde­pen­dently on whether to waive the 2255); or move to with­draw (because there’s an irrec­on­cil­able con­flict between your inter­est in main­tain­ing your ethics and your client’s inter­est in the action).

None of them is a great answer. “Refer the client to con­flict coun­sel” is least bad, but most crim­i­nal defen­dants in fed­eral court don’t have resources to hire another lawyer to advise them on whether to waive the 2255. (Though ask­ing the court for resources for such coun­sel, either under the CJA or in an Ake motion, might bring the point—that the gov­ern­ment should not be ask­ing for such a waiver in the first place—home to a fed­eral judge bet­ter than any­thing else.)

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This entry was posted by on Saturday, November 24th, 2012 at 12:18 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.

About The Author

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 “The Ethical Masochist’s Dilemma”

  1. Robb Fickman says:
    24 November 2012 at 2:14 pm

    Mark–
    You make a very good point. It makes me won­der about the Court’s even accept­ing the stan­dard pleas.

    I know the his­tory. It was explained to me some time ago by a fed­eral Chieftan.

    When the Evil Guide­lines were enacted in 1987, the cur­rent waiver lan­guage was not in the std writ­ten plea agree­ment. As judges started impos­ing the con­sis­tently harsh guide­line sen­tences, defen­dants started to appeal the harsh sen­tences. The US Attor­neys office had lots of appeals on sen­tenc­ing to deal with.

    Being the Fed­eral Gov­ern­ment, it didn’t take too long for the US Attor­neys office to fig­ure out a one size fits all “screw the defen­dant” rem­edy. The gov­ern­ment sim­ply changed the std writ­ten plea agree­ment to include the waiver of appeal lan­guage. That lan­guage came first. Later as I recall the Gov­ern­ment added the waiver of 2255 or the Great Writ.

    There are three pos­si­ble solu­tions. None of them are likely:
    1. Draw the Courts’ atten­tion to this point and get them to lean on the govt to take the lan­guage out;
    ( not likely)
    2. Approach the US Attor­ney or AG and talk them into chang­ing the lan­guage. ( far less likely)
    3. Unite the Defense Bar to uni­versely refuse all such plea bar­gain. ( even less likely. Not to men­tion the eth­i­cal issues that might raise)

    Per­haps The Fed­eral Pub­lic Defend­ers Office & a united CJA panel would Be in the posi­tion to take on this issue. Best posi­tion to Just Say No. But as cat herders we know that unit­ing the defense bar is very tough and extremely thank­less. Nev­er­the­less, wrong is wrong.

    Mark you are right to point out this wrong. I for one will join you in try­ing to right this wrong in the ” crim­i­nal ” jus­tice sys­tem. I will add it to the list.

    Robb Fick­man

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  2. Thomas R. Griffith says:
    24 November 2012 at 5:26 pm

    Mr. B., the old Plea Bar­gain dilemma in an uneth­i­cal vs. eth­i­cal Post with mul­ti­ple catch 22’s. This should be on an exam or two if it’s not already.

    The legal indus­try is at a point in time that most thought that they’d never expe­ri­ence. Never before have we seen or heard attor­neys’ / lawyers’ from coast to coast speak­ing up pub­li­cally about the ‘wrongs’ built into the sys­tem to per­vert jus­tice as we’ve wit­nessed lately. With the Pres­i­dent & the 1st Lady both being in the club, we can only hope they also get on board with right­ing wrongs. Speak­ing on behalf of the vic­tims’ of the sys­tem (of Texas & beyond), we thank you & fel­low cham­pi­ons’ of judi­cial reform for all that you do (and plan to do) on behalf of oth­ers.
    ————————————————————————————————–
    Re: the Plea Bar­gain, the loop­hole that allows the guilty as sin to be spared the right­ful pun­ish­ment they truly deserve & forces the inno­cent to con­sider per­jur­ing them­selves by falsely con­fess­ing in order to avoid pos­si­ble 99 year sen­tences. Not to men­tion the real crim­i­nal being ignored & free in the later. -
    In the process of right­ing wrongs, I beg the cham­pi­ons’ to con­sider adding the fol­low­ing to the ever grow­ing ref­or­ma­tion list, ASAP;

    *Abol­ish the prac­tice of allow­ing Non-CDLs to dab­ble in felony jury tri­als. A real life WTF? Why in the world this is allowed is beyond comprehension.

    *If the Defense wishes to TapOut and Plea Bar­gain their client’s case after the jury has been seated, manda­tory doc­u­men­ta­tion of the entire process by court reporter(s) would be eth­i­cal along with it (Doc­u­ment) offi­cially being part of the ‘entire’ case file. Includ­ing the reason(s) ‘why’ it’s in the client’s best inter­est. Wait­ing till trial day just seems unethical.

    *Abol­ish the prac­tice of allow­ing the Defense to con­sult with clients’ in hold­ing cells (echo-chambers) within ear-shot of other humans. Espe­cially dur­ing attempt(s) to illicit a Plea Bar­gain. Attor­ney / Lawyer — client con­fi­den­tial­ity is a joke when every­one is allowed to participate.

    *Abol­ish the prac­tice of allow­ing secrete hush-hush Plea Bargain(s) to take place in the Judge’s cham­bers (aka: the Grif­fith Plea) where the court reporter is instructed to exclude the Q. & A. por­tion between the Judge & Defen­dant and where Not Guilty is crossed out with Nolo Con­tendere / No Con­test being penned in over it and recorded as tak­ing place in “OPEN COURT”. (I could be wrong but — Defendant’s should never be taken into the cham­bers, where the ink pen could be jammed into everyone’s jug­gler veins’,)

    *If a Defen­dant is on pro­ba­tion at time of arrest on a new unre­lated charge & the Defense con­vinces him / her to stop the jury trial to Plea Bar­gain for 10 years and be out in a 3 vs. tak­ing a chance on 99 years, (adding that “you are going to prison just for being arrested, guilty or not”), being auto­matic grounds for dis­bar­ment / sanc­tions & jail time — based on uneth­i­cal legal advice dis­tri­b­u­tion in order to avoid the rest of the trial. Clients’ deserve a jury trial to ver­dict if they plead Not Guilty, lying to them just to get out of it should be a crime. (Like Mr. Fick­man said – “Just say no” to the ADA and let the jury do thier duty. Cients’ can appeal ver­dicts’ vs. not if they TapOut.

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