Covering Your Ass

 Posted on August 15, 2007 in Uncategorized

There's an interesting discussion going on over at Gideon's A Public Defender about lawyers covering their asses (an effete small-town judge once threatened to report me to the bar for using that expression in a letter to former counsel) by explaining to the public or the court that their clients had considered and turned down a plea offer.

New York criminal-defense lawyer Scott Greenfield argues (quite correctly) that a lawyer should not place his own interests above his clients and announce that the client, in turning down a plea agreement, "is 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,"

Gideon replies:

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".

Scott thinks that's perfectly appropriate, that the lawyer has done nothing to reveal a privileged communication. He thinks that this avoids the problem.

Miranda says:

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.

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.

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.

Miranda asks:

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?

This situation is no different. Assuming that the client hasn't consented to the disclosure (why would a client?), both situations involve violations of the attorney-client privilege and, in Texas at least, violations of the disciplinary rules of professional conduct. (Read your own state's rules to see if there's an applicable exception.) There's no exception to the privilege for "things said to the judge" or "things the judge wants to know" any more than there is an exception for "things that benefit the lawyer."

Because it's a clear ethical violation, not all of us are happy to do it. In fact, I once told a federal judge who asked an intrusive question about whether I had told my client something that I couldn't answer the question.

Lawyers keep committing this ethical violation not because the rules are unclear, but rather because it's the way they've always done things, and the way they've always seen things done. But it never has been right, and never will be.