Cover your ass-ery

Update 2: For those who don’t want to read the comments (shame on you!), here’s my follow up post.

Is the only thing that can explain the following comment to the press by a lawyer about his client:

Reyes’ attorney, William Gerace, said that the private company’s results were also a match. Gerace said that Reyes’ decision to not accept a plea deal of 15 years is a bad one.

“He’s 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,” Gerace said.

Gerace said the evidence against his client is too strong and that if there is a trial, Reyes could go to prison for more than 20 years.

Update: The news story linked to above leads one to believe that these statements were said to the press, but it is not explicit in that regard. However, the video that accompanies the story has a clip of Attorney Gerace speaking to the media and this Courant story also clarifies that these comments were indeed to the press.

Miranda, in the comments below, raises an interesting question: Is it useful, or shall we say not despicable, for an attorney to make a limited statement on the record reflecting that after being advised by counsel, the client has decided to reject the offer?

Looking at this from a future habeas perspective, Attorney Gerace will certainly be safe from claims that he did not adequately convey the state’s offer to him, but what of a general ineffectiveness claim? Do these comments hurt his client? Would they not support a claim that he was pressured into taking a plea agreement or that his attorney failed to adequately represent him and conduct an investigation into his defense, supported by his comments to the press acknowledging his client’s guilt and his desire to have him plead guilty?

Scott weighs in on this topic as well

25 thoughts on “Cover your ass-ery

  1. Miranda

    Well, it’s not clear from the article whether Gerace said that to the press directly or to the court on the record. Would this change your opinion, Gideon?

    To me, it does. While it’s totally unnecessary to speak to the press about attorney-client communications, I don’t think the same necessarily holds true for making a record during a court proceeding. It’s a tough call – whether to make a record or not when your client chooses to do something (reject offer, waive jury, elect to testify) that is against your advice.

    We can take issue with the extent of his comments or perhaps his use of certain terminology, but I can’t say I blame him for making a record during the canvass that his client’s rejection of the plea agreement was against the advice of counsel. (If that’s indeed where the comments came from). In a case like this, where Gerace obviously believes his client will fare much worse after trial, noting his dissent on the record IS a kind of cover his ass move, but it also should avoid other issues and complications down the road (like a habeas or a motion to fire his attorney).

    I’d be interested in other opinions (especially from those more educated than I in ethical standards), but, Gerace’s particular comments aside – does expressing the fact that your client has made a decision against the advice of counsel violate the privilege? In a canvass, clients are often asked and expected to answer whether they were advised by counsel of x, y or z. Is this different?

    Reply
  2. Scott Greenfield

    I can imagine no set of circumstances, whether to a reporter or a judge, where a defense lawyer is entitled to put his self-interest above his client. Even if Gerace was moving to be relieved because of his client’s misguided choice, he can do so without specifying the privileged details and hanging his client out to dry. Make no mistake about it, publicly suggesting that his client, who wants a trial as is HIS right, is guilty, has no defense and should have taken the plea, is wrong.

    You say you “can’t blame him” for making it known that rejection of the plea was against advice of counsel. By saying that, you put the lawyer’s interest ahead of the defendants. There are few things more blameworthy than a lawyer placing his own interests above the client. This isn’t a game of comparables. When you’re a lawyer, you have a duty to act in your client’s best interests, not your own.

    Reply
  3. Gideon Post author

    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”.

    You’re basically placing a limited Boykin canvass on the record, in lieu of a Boykin canvass during a plea.

    Would you still think it unacceptable?

    Reply
  4. Jesse

    I love this blog. I’m always surprised by the intelligent comments.

    Of the 8 or so murder cases I have written about in the last year (from one suburban county), there was only one where the defense has or is going to rely on outright denial of any culpability as it relates to the death.

    In 7 of 8 murders, the defense attorney knew from arraignment on that the defense argument would be a mental health argument or a statutory argument, something akin to “yeah, the evidence shows s/he was obviously involved in the incident that led to So-and-so’s death but statutorily those actions weren’t F1 murder because…”

    I’m not familiar with this Reyes case. But what of these 7 cases where the defense was never going to deny involvement? Does it become more OK to say “he shoulda taken the deal” or is it just as objectionable?

    After a slam-dunk prelim and a half dozon failed defense motions, for example, (again I’m not familiar with the Reyes case) it can be pretty obvious that a defendant ought to take a deal when its offered. I have a hard time condemning the defense attorneys CYA instincts. This case might be the only public persona the attorney has. It’s not completely rediculous to want to clarify who it is that’s making the completely unwise decisions.

    Reply
  5. Gideon Post author

    [quote comment=”4080″]I love this blog. I’m always surprised by the intelligent comments.
    [/quote]
    Hey now! That sounds like an insult cloaked in a compliment! :P

    Reply
  6. Scott Greenfield

    [quote comment=”4080″]I love this blog. I’m always surprised by the intelligent comments.[/quote]
    [quote comment=”4081″]Hey now! That sounds like an insult cloaked in a compliment! :P[/quote]
    Ahem…I believe he was talking about the comments.

    Reply
  7. Scott Greenfield

    Jesse,

    There are three things you wrote that I would comment on.

    “I have a hard time condemning the defense attorneys CYA instincts.”

    Why? This is why we are paid the big bucks. Seriously this is our obligation. There are times that acting in our clients’ interest at the expense of our own makes us uncomfortable, but that’s the deal. If someone doesn’t like it, there’s always real estate law.

    “This case might be the only public persona the attorney has.”

    This one scares me the most. The lure of the kleig lights has brought down many a lawyer. If you want to be a celebrity, learn to dance. Need a good CT example of how the spotlight screws with a lawyer’s head? Look at my good bud, the once ubiquitous but always smiling Mickey Sherman.

    “It’s not completely rediculous to want to clarify who it is that’s making the completely unwise decisions.”

    It’s not at all ridiculous. You just can’t do it at the expense of the client.

    SHG

    Reply
  8. Gideon Post author

    [quote comment=”4080″]I love this blog. I’m always surprised by the intelligent comments.

    Of the 8 or so murder cases I have written about in the last year (from one suburban county), there was only one where the defense has or is going to rely on outright denial of any culpability as it relates to the death.

    In 7 of 8 murders, the defense attorney knew from arraignment on that the defense argument would be a mental health argument or a statutory argument, something akin to “yeah, the evidence shows s/he was obviously involved in the incident that led to So-and-so’s death but statutorily those actions weren’t F1 murder because…”

    I’m not familiar with this Reyes case. But what of these 7 cases where the defense was never going to deny involvement? Does it become more OK to say “he shoulda taken the deal” or is it just as objectionable?

    After a slam-dunk prelim and a half dozon failed defense motions, for example, (again I’m not familiar with the Reyes case) it can be pretty obvious that a defendant ought to take a deal when its offered. I have a hard time condemning the defense attorneys CYA instincts. This case might be the only public persona the attorney has. It’s not completely rediculous to want to clarify who it is that’s making the completely unwise decisions.[/quote]

    I think the point is that I don’t understand why an attorney – in any circumstance – would say something to the press that doesn’t benefit their client.

    As we discussed above, if the attorney feels it necessary to state on the record that the decision is not his, but his clients, that might be okay (and some would say prudent).

    This is not Attorney Gerace’s only public persona, but even if it were, I don’t think it should be a consideration.

    Reply
  9. Miranda

    First, I stand corrected: Gerace may have made these comments on the record, as well, but we know he made them to the press, which is where the direct quote came from.

    I can see both sides of the argument here. (To be clear, my comments are limited to statements made during court proceedings, not embellishments to the press). I like Gideon’s tactful suggestion as to how to indicate that there’s an issue there without divulging too much. Generally, I’d rather err on the side of making an accurate, complete record than not. 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. This will not be necessary – or even true – in all cases. But if in Reyes’s case, for example, there is an IAC claim against Gerace down the road for something that happens at trial, you’ll have a beautiful record for what occurred pretrial. You’ll have a sense of what went on instead of being in the dark and allowing counsel to change the story later on. (Not that that ever happens, right, Gideon?)

    I agree 100% that our clients’ interests are more important that our own. I disagree, however, that making a record puts your interests above your client’s. I guess it comes down to this – I fail to see how it hurts the client to indicate that his/her decision was made despite your advice, rather than in consideration of your advice? (And, again, I’m talking about a statement like Gideon’s, not a statement like Gerace’s that intimates an opinion about the quality of evidence against your client, etc.). 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?

    Reply
  10. Windypundit

    Maybe I’m misunderstanding the circumstances, but isn’t the uncertainty of a trial the main reason the prosecutor would offer a plea deal? If my lawyer thinks I should take a deal, he should be trying to get a better one, not undermining my bargaining position by telling everyone that my case can’t be won.

    Reply
  11. Scott Greenfield

    You are indeed correct, Windy. As to Miranda’s concerns, why would you be so concerned about IAC? It would never enter my thoughts, particularly in a way that would suggest the practice of defensive law.

    We have all agreed that Gid’s version, versus Gerace’s, avoids the problem, so there is neither issue nor point to debating the point. So now that you abandoned your approval of Gerace and substituted Gid’s version, your point is moot.

    However, Miranda, when you advocate make a “complete” record that involves confidential disclosures. then your argument becomes problematic again. How does it hurt to let the world know that the client has chosen to ignore your advice? Do you really fail to see the problem?

    Your fear is self-protective. Gideon’s version does not disclose that the client acted against advice of counsel. It acknowledges counsel’s duty and the client’s choice. Nothing more. And that’s how ethical lawyers do it.

    SHG

    Reply
  12. Gideon Post author

    [quote comment=”4099″]You are indeed correct, Windy. As to Miranda’s concerns, why would you be so concerned about IAC? It would never enter my thoughts, particularly in a way that would suggest the practice of defensive law.

    We have all agreed that Gid’s version, versus Gerace’s, avoids the problem, so there is neither issue nor point to debating the point. So now that you abandoned your approval of Gerace and substituted Gid’s version, your point is moot.

    However, Miranda, when you advocate make a “complete” record that involves confidential disclosures. then your argument becomes problematic again. How does it hurt to let the world know that the client has chosen to ignore your advice? Do you really fail to see the problem?

    Your fear is self-protective. Gideon’s version does not disclose that the client acted against advice of counsel. It acknowledges counsel’s duty and the client’s choice. Nothing more. And that’s how ethical lawyers do it.

    SHG[/quote]

    Scott: I agree with you entirely, but having had some experience doing habeas claims involving IAC, I know it is frustrating that lawyers don’t make a complete record (as much as they can or should), which makes it that much more difficult for a habeas attorney to properly review a claim.

    While it may not be appropriate in this context, I agree with Miranda that an attorney must always strive to make a record – be it for appellate or collateral review.

    There is the intertwining of the ethical obligation of the attorney and the obligation to create a record that will be sufficient to invoke post-conviction scrutiny. It is interesting and I suspect this problem would not arise were some attorneys not reluctant to tell the truth in subsequent proceedings.

    Reply
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  14. Miranda

    Scott,

    If my comments seemed to support Gerace, then I wasn’t clear. That was not my intent. I merely wished to raise a corollary issue – a discussion about how and when, if ever, it is appropriate to indicate to the court that your client has made a decision that is not consistent with your advice. There are a million different ways to handle the situation and to say it, and I was hoping for a meaningful dialogue about it. While I do not endorse Gerace’s particular comments for a number of reasons, I have seen many attorneys say something to that effect (albeit muted and more Gideon-esque) on the record.

    I used an IAC claim as an example of an event in the future that would benefit from a good record. I am certainly not advocating that attorneys should put their own interests above those of their clients and/or take action detrimental to their clients. Quite frankly, I don’t think either of my posts imply that.

    I understand the dilemma about not being permitted to divulge privledged communications, which is why this issue is especially intriguing and important. My posing the question – How does this hurt your client’s interests – was not so much in response to an ethical question about privileged communication, but to your comment that it puts the attorney’s interests above the client’s. Obviously, if it’s privileged information or otherwise harmful to your client’s case, then this would be true. But if it’s not?

    This begs the question we’ve all danced around – does any statement to this effect violate the privilege and if so, how? Why is it okay to say I advised my client of the maximum penalty, and of the elements of the offense with which he is charged, and of the evidence against him, etc.? I submit it’s a gray area, and I’m interested in people’s theories on where to draw the line.

    Finally, I resent your implication that I am unethical – you have no idea how I practice or what I’ve done in the past in a courtroom. I raised a question I thought was interesting in light of the fact that I’ve seen attorneys handle the situation in many different ways. I very much would like to have a discussion about the ethics of this issue without unnecessary and unjustified hostility.

    Reply
  15. Miranda

    Mark – if all questions about whether an attorney discussed the offer, or anything about the case, with the client violate the privilege, then don’t we ask our clients to waive the privilege in this respect everytime they go through a canvass – plea, jury waiver, or otherwise?? This seems curious to me.

    Reply
  16. Miranda

    Wow, I’m annoying now, I know. But here’s a portion of the commentary from the Rules of Professional Conduct, as published in the 2007 Connecticut Practice Book:

    Rule 1.6: Confidentiality of Information

    “Except to the extent that the client’s instructions or special circumstances limit that authority, a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation. In some situations, for example, a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed to make a disclosure that facilitates a satifactory conclusion to a matter.”

    A strict interpretation of this, I suppose, would preclude an attorney from offering any information not necessary to ensuring that the client’s decision (be it plea or some kind of waiver) is accepted by way of an adequate canvass. Any additional information would be in violation of the rule.

    People will still disagree on what’s appropriate and not, but there’s the relevant commentary, at least.

    Reply
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