Take the Plea:
How Forceful Can and
Should You Be?
MD Rules of Professional
Conduct, Preamble
“As advocate, a lawyer zealously asserts
the client’s position under the rules of
the adversary system.”
“[T]he lawyer’s obligation [is] zealously
to protect and pursue a client’s
legitimate interests, within the bounds
of the law . . .”
Evidence We Wish
They Didn’t Have
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Wiretaps
Evidence Seized Pursuant to Warrants
Cooperator Testimony
Confession
Law Enforcement Eyewitnesses
Videotaped Surveillance
Incriminating Text Messages
MD Rules of Professional Conduct,
Rule 1.2, Scope of Representation
and Allocation of Authority Between
Client and Lawyer
“In a criminal case, the lawyer shall abide by
the client’s decision, after consultation with the
lawyer, as to a plea to be entered, whether to waive
a jury trial and whether the client will testify.”
See also Florida v. Nixon, 543 U.S. 175, 187-92
(2004); United States v. Chapman, 593 F.3d 365,
368 (4th Cir. 2010) (citing Nixon and reiterating
that the decisions that are exclusively a
defendant’s are whether to plead guilty, waive a
jury, testify, and appeal).
“After consultation”
Rule 1.2 directs that the client’s
decision to plead guilty or go to trial
should be made “after consultation”
with his attorney.
“Consultation”
“Consultation” is defined as
“communication of information
reasonably sufficient to permit the
client to appreciate the significance of
the matter in question.”
See MD Rules of Professional
Conduct, Rule 1.0, Terminology.
“Communication”
MD Rules of Professional Conduct,
Rule 1.4, Communication:
“A lawyer shall explain a matter to
the extent reasonably necessary to
permit the client to make informed
decisions regarding the
representation.”
MD Rules of Professional
Conduct, Rule 2.1, Advisor
“In representing a client, a lawyer
shall exercise independent
professional judgment and render
candid advice. In rendering advice, a
lawyer may refer not only to law but to
other considerations such as moral,
economic, social and political factors,
that may be relevant to the client’s
situation.”
Comment to Rule 2.1, Advisor
Commentary: Scope of advice.
[1] A client is entitled to straightforward advice
expressing the lawyer's honest assessment. Legal advice often
involves unpleasant facts and alternatives that a client may
be disinclined to confront. In presenting advice, a lawyer
endeavors to sustain the client's morale and may put advice
in as acceptable a form as honesty permits. However, a
lawyer should not be deterred from giving candid advice by
the prospect that the advice will be unpalatable to the client.
[5] Offering advice. When a lawyer knows that a client
proposes a course of action that is likely to result in
substantial adverse legal consequences to the client, the
lawyer's duty to the client under Rule 1.4 may require that
the lawyer offer advice if the client's course of action is
related to the representation. Similarly, when a matter is
likely to involve litigation and, in the opinion of the lawyer,
one or more forms of alternative dispute resolution are
reasonable alternatives to litigation, the lawyer should advise
the client about those reasonable alternatives.
ABA Standards for Defense
Function
Standard 4-5.1 Advising the Accused
(a) After informing himself or herself fully
on the facts and the law, defense counsel
should advise the accused with complete
candor concerning all aspects of the case,
including a candid estimate of the probable
outcome.
(b) Defense counsel should not intentionally
understate or overstate the risks, hazards,
or prospects of the case to exert undue
influence on the accused's decision as to
his or her plea.
ABA Standards for Defense
Function
Standard 4-6.2 Plea Discussions
(a) Defense counsel should keep the
accused advised of developments
arising out of plea discussions
conducted with the prosecutor.
(b) Defense counsel should promptly
communicate and explain to the
accused all significant plea proposals
made by the prosecutor.
What Should and Can You Do?
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Meet with Client - Repeatedly
Review Discovery with Client - Repeatedly
Write Letters
Provide Copies of Case Law
Investigate
Mini-Mock Trial
Meet with Family
Get Help from Other Attorneys