My post two days ago about the appropriateness of comments made to the media has sparked intense discussion in the comments here and in posts from Scott and the Texan.
Let’s take Mark’s post first. He writes:
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.
As Scott does, I disagree with Mark. It’s not that “this is how it has always been done”, but that it’s not privileged at all. It does not require disclosing the content of anything conversation, but simply the fact that you have discussed it with the client (which is an ethical obligation in of itself). Taking Mark’s position a little bit further, he is then implying that parts of the Boykin canvass are unethical. What’s the difference between stating on the record: “I have discussed the State’s offer with my client and advised him of the consequences of the plea and he has decided to accept/reject the offer” and responding to the Judge’s question during a canvass: “Have you discussed [insert any of the requirements of a valid plea here] with your client?”
Scott and Mark then misinterpret certain comments made by me and Miranda. First Mark writes:
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.
Scott follows up with:
But let’s turn to the really fascinating aspect of this debate, Miranda’s position that a lawyer’s CYA statement, in anticipation of a writ of habeas corpus or ineffective assistance of counsel (IAC) claim, justifies doing SOMETHING to protect the lawyer. I feel confident that Mark and I will agree that this is blasphemy.
What smacked me upside the head was Miranda’s, and to some extent Gid’s, suggestion that lawyers should engage in defensive lawyering for fear of an IAC claim. Why? If a defendant later claims that you failed to represent him adequately, so what? Will you melt? Will your self-esteem crumble? Will your friends and neighbors shun you? Who cares?
We’re not suggesting that you do this to protect yourself from a future IAC claim; rather that it is good practice (and we’d prefer) that the record be clear. Clients, in habeas petitions, claim all sorts of things. If the lawyer doesn’t do a good job of peppering the file with memos and correspondence (with many do not) and if the record isn’t clear as to what the client was advised of, then it is unimaginably difficult, given the high IAC standard, to determine what is a viable claim and what is not.
Imagine the scenario where the attorney does not state on the record whether he has discussed the state’s offer with the client. The transcript referencing the rejection of the offer is one of a court appearance where a continuance was sought and the judge opens the proceedings by saying simply: “I have been informed that the offer has been rejected. This matter is placed on the trial list. Continued to xx/xx”.
The client then claims that he was never informed of this offer and thus could not have rejected it.
How easy would it be for an unethical lawyer to simply show up for the habeas trial, get on the stand and say: “Oh I discussed it.”
Who is the habeas court going to believe?
It is to protect the client that we are recommending making complete records.