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.

[quote]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.[/quote]

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).

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.

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).

[quote]While the Second Circuit may not have spoken, the Strickland Court has indicated how the question should be resolved. Just before starting its discussion of the merits, it observed that it had “granted certiorari to consider the standards by which to judge a contention that the Constitution requires that a criminal judgment be overturned because of the actual ineffective assistance of counsel.” 466 U.S. at 684. Later it pointed to “prevailing norms of practice as reflected in American Bar Association standards” as guides “to determining what is reasonable.” Id. at 688.

The American Bar Association’s standard on the precise question before us is simply stated in its Model Code of Professional Responsibility, Ethical Consideration 7-7 (1992):

A defense lawyer in a criminal case has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable. (emphasis added)

Anthony G. Amsterdam, in Trial Manual 5 for the Defense of Criminal [**11] Cases (1988), observed:

The decision whether to plead guilty or contest a criminal charge is ordinarily the [*497] most important single decision in any criminal case. This decision must ultimately be left to the client’s wishes. Counsel cannot plead a client guilty, or not guilty, against the client’s will. [citation omitted] But counsel may and must give the client the benefit of counsel’s professional advice on this crucial decision. § 201 at 339(the word “must” was emphasized by the author; otherwise, the emphasis is ours)

This manual is a joint project of the American College of Trial Lawyers, the National Defender Project of the National Legal Aid and Defender Association, and the ALI-ABA Committee on Continuing Professional Education. The Reporter, Anthony G. Amsterdam, is a distinguished Professor of Law and Director of Clinical Programs and Trial Advocacy at New York University School of Law.

And finally, in United States v. Villar 416 F. Supp. 887, 889 (S.D.N.Y 1976), Judge Motley — in circumstances quite different from those at bar — made the following observation about effective assistance of counsel:

Effective assistance of counsel [**12] includes counsel’s informed opinion as to what pleas should be entered. Walker v. Caldwell, 476 F.2d 213, 224 (5th Cir. 1973); Jones v. Cunningham, 313 F.2d 347 (4th Cir. 1963), cert denied 375 U.S. 832, 84 S. Ct. 42, 11 L. Ed. 2d 63 (1965). As Chief Judge Sobeloff stated in the latter case (at 353):

Of course, it is not for a lawyer to fabricate defenses, but he does have an affirmative obligation to make suitable inquiry to determine whether valid ones exist. Such a duty is imposed for the salutary reason that ‘prior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered.’ Von Moltke v. Gillies, 332 U.S. 708, 721, 68 S. Ct. 316, 322, 92 L. Ed. 309 (1948). (emphasis Judge Motley’s)

Turning to the facts before us, it would be impossible to imagine a clearer case of a lawyer depriving a client of constitutionally required advice.[/quote]

I could go on all night, but I’m not going to.

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.[/quote]

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.

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.