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CYA

I spent the last couple days talking about the Supreme Court decisions last week in Missouri v. Frye and Hafler v. Cooper, in which the Supreme Court substantially expanded the concept of ineffective assistance of counsel in the realm of plea bargaining.  I've talked about how courts, prosecutors, and defense attorneys will react to the decisions, and how they will impact the criminal justice system.  Today I want to talk about something else:   how they'll impact our relationship with our clients.

That's a complicated relationship, especially with regard to plea bargaining.  Most of our appointed clients figure that if we work at all, it's going to be for the other side.  That's simply a reflection of basic economics.  If you're paying someone $5,000 to give you advice, you're more likely to consider it; if you're getting it for free, you tend to think it's worth what you paid for it.  Even retained clients, though, can present problems, and those problems can be aggravated by discussions about whether the client should plead guilty to a crime.  Many clients are unwilling to admit wrongdoing, and pressing them on it is often counterproductive, and even destructive of the relationship:  if a guy tells you he's innocent and you tell him he should plead guilty, he often reads that as you telling him you don't believe him.  That may or may not be true, but having trust issues isn't healthy for any relationship.

And that's one of the concerns I have about Frye and Cooper, and the enhanced significance of plea bargaining:  it creates a need, and perhaps desire, for transparency in what is arguably the most private aspect of our representation of a client.  I mentioned yesterday that I would expect it to become common practice for judges to place plea bargains on the record before proceeding to trial.  That cures some of the problem raised in Frye, the attorney's failure to communicate a plea offer.  But it doesn't cure all of the problem:   plea offers may have changed over the course of the proceedings.  That can be remedied in large part by having the prosecutor recite all the plea offers that have been made in the case.  That still presents difficulties, though, in defining what the plea offer is.  There are varying degrees of formality in the bargaining process, everything from reducing the offer to writing to vague exchanges like, "If I got it reduced to a fourth degree felony, would your guy?" "I'll float it by him."

Cooper presents an even bigger problem, because that looks at the attorney's advice to the client about the plea bargain, and there's simply no way a court or prosecutor can demand examination of that.  A judge can certainly ask the defendant in open court what the plea is, but there's no way she can ask him about what advice his lawyer gave him on whether to take it.

So in the face of all this, and the prospect of arguments of ineffective assistance, disciplinary complaints, and even malpractice suits, what's a lawyer to do?  The natural tendency will be to paper the file:  if Joe Doaks goes off to prison on his murder conviction and claims you never told him about the offer to plead to manslaughter, you've got an affidavit in the file from Joe Doaks acknowledging that the State offered to allow him to plead to manslaughter.  If he says you told him to turn down the deal, there's another affidavit in the file from him refuting that.  After all, you've got an obligation to protect yourself.

To a point.  Here's the deal:  you signed up to work in an area where one of the rules is that your primary obligation is to your client, not yourself.  There's nothing that's going to destroy whatever trust the client has in you faster than his belief that you've got that backwards.

That doesn't mean you shouldn't do it, it just means you have to find a good way to do it.  Sticking an affidavit in your client's face and telling him, "Here, I want you to sign this to acknowledge that I've told you I think you should plead guilty," is not one of them.  There's a lawyer in my office who's very good with this.  He'll tell the client that his job is to make sure the client fully understands everything about the case, and that one of the ways to do that is to write it down, and then he'll go over the affidavit line by line, explaining what it means.  By the end of the process, the client thinks that the affidavit is for his benefit.  It takes a bit of extra time, but it's essential to maintaining the relationship.

And one more thing.  Keep things confidential that should remain confidential.  I've seen lawyers ask to have put on the record not only what the plea offer is, but that they recommended the client take it.  When you tell the judge that you think your client should plead, most judges will infer from that that you believe your client is guilty.  What's more, you've also essentially hinted to the judge that your client, not you, is the one responsible for taking up the judge's valuable time in a pointless trial.  There are things you can do to cover your ass, but throwing your client under the bus shouldn't be one of them.

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