The maelstrom that is cover your ass-ery
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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.
Sphere: Related Content
Now you’ve got me confused, Gid. So you think a lawyer is going to make the record clear by announcing in open court, “why no judge, I never told my client anything about the plea offer, despite my legal and ethical obligation to do so, but I still reject the offer.” That’s the alternative to your hypothetical.
Is that really what you’re protecting against? Does that happen a lot in Connecticut? It never happens in Texas (though mostly because the lawyers regularly fall asleep in court [a joke Mark, don't get your six-shooters in a twist]). Seriously Gid, how does the protection of the client fit into the lawyer announcing that he’s performed his obligation and foreclosed any subsequent challenge?
And one more thing: Speaking of unethical lawyers, if the lawyer states on the record that he has fully informed his client, but in fact has not, how many defendants will pipe up in open court and contradict their lawyer, the one guy they believe is protecting their interests? I’ve heard more than a few defendants tell me that the lawyer was lying, but they thought it best to keep their mouth shut in court and deal with the lawyer later.
SHG
Looks like Miranda is in the house, so I’ll let her speak for herself (I’ve been burned in that regard before
)
Again, I think you’re misunderstanding. I’m talking about general practice. I think it is always a good idea to create a record.
for example, if I didn’t do something that I should have, I would gladly state it on the record so as to preserve and/or create a claim for my client.
Obviously I’m not advocating lying on the record.
I do not agree with Gerace (I don’t understand how you could think I do).
This is a topic near and dear to my heart, because I see way too much ass-covering (and, by the way, I have willingly, and without subpoena, gone to testify against myself THREE TIMES in post-conviction proceedings and never been found ineffective – so, no, you don’t melt, the world doesn’t end, and I have never, ever had a client complain about me to the state bar). If someone says I screwed up, SO WHAT? I’m a darn good lawyer (and modest too) but I am not perfect.
But our judges have a bad, bad habit of doing way too much inquiry into the discussions; about pleas, about whether the client is going to testify, routinely asking if the client is satisfied with the pd. And the point is well-taken that, even if the client is worried and unhappy and his lawyer has not been to see him, he is not going to complain about his lawyer in front of the judge and the prosecutor. The lawyer in Gideon’s initial post went way too far. It was unethical.
At the same time, rules, which are supposed to protect the client’s constitutional right to a jury trial, mandate that judges ensure the voluntariness of pleas. That can only be done through questioning. I personally think 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.
A lot of criminal defense attorneys roll on post-conviction ineffective rep claims.
You guys need to distinguish the circumstances surrounding the acceptance of a plea (did the lawyer discuss the consequences of the plea with the client?) with circumstances surrounding the rejection of the plea. Talking about the former may further the ends of the representation (because the judge might not accept the plea otherwise) and helps the client. Talking about the latter does not.
Of course, one must wonder why the Sixth Amendment, which guarantees one’s right to a fair trial, requires effective representation of counsel when it comes to the plea bargaining process.
Makes sense, Mark. That was my line of thinking from reading the rule (1.6). So, the bottomline is not that an attorney may never disclose anything on the record about the rejection of the offer (or anything else for that matter), but may only do so where it is necessary for the court proceeding.
Anyone find any other rules – ethical or otherwise – that provide any guidance?
Sean O’Brien wrote:
No. There’s really no reason to wonder.
Miranda wrote:
I wouldn’t say that. What does “necessary for the court proceeding” mean? A judge might think it is necessary to inquire into things that are none of his business, but the court’s “necessity” does not trump the client’s confidentiality. I would say that the lawyer can only disclose client communications if (a) he is required to by law or ethical rule; or (b) it would help the client.
Mark Bennett wrote:
What? So if a Judge says to you:
Gideon wrote:
What would your response be?
If the Court follows that up with:
Gideon wrote:
Your response is…?
How is that not necessary to the proceeding?
Gideon, what is the textual basis of extending a right to effective counsel, which is to preserve the right to a fair trial, to plea deals?
Sean O’Brien wrote:
The right to counsel, which implies the right to effective assistance of counsel.
This is well-settled law.
Gideon, it’s not so well-settled. Let’s say, for the sake of argument, that Criminal X would have taken a plea deal had his attorney effectively represented him. So he goes to trial (which complied with the Constitution)instead and loses and is sentenced to a longer stretch in the pokey. Then he argues on appeal that he would have taken the plea and therefore has the right to get the benefit of the plea. Can a court order the state to make the same offer on pain of overturning the conviction? I don’t see where as a matter of federal constitutional law, courts have the power to do this. The guy got a fair trial–that’s what he’s entitled to.
Now, some Ninth Circuit cases have held that the courts do have this power. It would be interesting indeed to see how the Supreme Court would come out. I would bet that at least 4 would say that the defendant is out of luck.
No, not in that case. It depends on the specific facts of a case.
If the offer was never conveyed to the client, then yes. If the offer was conveyed and he rejected it, then no.
For example, see Boria v. Keane, 2nd Cir.
The defendant has the right to effective assistance of counsel at all stages of a criminal prosecution – that is not disputable.
The Ninth Circuit has gone further. And, like I said, the raison d’etre for the right to effective counsel is to preserve the right of a fair trial. If the guy gets a fair trial . . . .
And I guarantee you that there would be at least four votes for my position on the Supreme Court, and if we elect another GOP president in 2008, there will likely be more.
Sean O’Brien wrote:
Sorry but you’re just wrong on that point.
It is always important to make a record. It both protects the client in any future claim he may have, and it protects the attorney (assuming that we all make truthful records). Also, contrary to what Scott said, I’ve had several clients argue with me to the judge on the record. I’ve never had a problem saying, “judge, I’ve not discussed the plea with my client so he is not prepared to accept or reject it at this time…” The ethical problem (IMO) occurs when the judge starts asking whether the attorney recommended the client take or not take the plea offer.
This is from Mickens v. Taylor:
The Sixth Amendment provides that a criminal defendant shall have the right to “the assistance of counsel for his defence.” This right has been accorded, we have said, “not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.” United States v. Cronic, 466 U.S. 648, 658 (1984).
If the guy gets a fair trial . . . . . . . how can he complain?
Sean O’Brien wrote:
I think you misunderstand.
The right to a fair trial is not the only purpose of the right to effective assistance of counsel. Effective Assistance of Counsel must be had at all stages of a criminal prosecution regardless of whether it ends in a trial or not.
Trust me on this. I deal with this frequently.
Like I said, it seems extremely difficult for a court to say, too bad state, you gave a guy a fair trial (where he had a shot at getting acquitted) and now you gotta redo it because counsel screwed up by not passing along plea or by misexplaining the consequences of plea. I don’t think there’s a good textual basis for your position, and I think my position would win at least 4 votes at SCOTUS, and it should win all 9 votes. Remember, Strickland is extra-textual, and should be limited to trial (and trial like things, i.e., motions in limine, alibi notices etc.).
Where, pray tell, is the “right to have a plea offer passed on to you with perfect clarity” in the Constitution? I’ve looked, and it’s not there.
Sean O’Brien wrote:
It doesn’t seem extremely difficult and it isn’t. Courts have said it and repeatedly.
I guess you’re making a political statement here and I’m not interested in that. If you want to discuss the law, fine.
It’s right next to reasonable suspicion.
Plea bargaining is a critical stage of a criminal proceeding, during which the advice of counsel is important. See Michigan v. Jackson, 475 U.S. 625, 632-33, 89 L. Ed. 2d 631, 106 S. Ct. 1404 (1986).
From the case I cited earlier – Boria v. Keane:
Gideon wrote:
I could go on all night, but I’m not going to.
That doesn’t mean that the guy has a right to have the result of a fair trial overturned because counsel, though there, was ineffective.
And last I checked, Wiggins be damned, the ABA’s rules are not coterminous with the Constitution.
Remember, Mickens went against a TON of court of appeals caselaw (you have to love Scalia’s dicta effectively overruling all of those cases in Mickens).
Sean O’Brien wrote:
Defendant is entitled to effective assistance of counsel at all critical stages.
Plea bargaining is a critical stage.
But for attorney’s ineffectiveness he would have taken the plea.
Conviction overturned.
It really is that simple.
Maybe you want to explain why you don’t think it is.
Okay, you believe what you want to. I’ll believe what the law says.
Mark Bennett wrote:
Well, I’m not sure – I think that’s the basis of the conversation and the ambiguity inherent in so many ethical rules that creates the gray areas we attorneys love so much.
Miranda wrote:
I think while you’re defining permitted disclosure in terms different from the rule, the meaning and effect is similar – if your client chooses to plead guilty and you need to make disclosures on the record to alert the court to some fact or to otherwise ensure that the court conducts an adequate canvass (which may be different in every case) to effectuate your client’s decision to plead guilty, for example, then I think you may and should do so. This is not only necessary to the proceeding, i.e., to proceed with a knowing and voluntary plea, but it is also in furtherance of your client’s decision to plead guilty.
I disagree that the test is what the judge deems necessary to the proceeding. It’s an ethical rule, and, therefore, turns on the attorney’s actions and perceptions about what’s necessary. (People will argue later about whether those actions were reasonable and within the perameters of the rule).