Mea Maxima Culpa

My friend Scott Greenfield is miffed about my characterization of his perspective on the question of when we should answer questions that the judge asks us about what we have told our clients.

Scott thinks that I’m accusing him of being unethical — untrue — and that I’m incorrect about his view — apparently.

What we’re talking about is the fact that we’ve conveyed a plea offer to the client.

I contend that that fact, like all communications between lawyer and client, is privileged.

Scott contends that that particular communication is not privileged.

In Texas, according to Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct lawyers can only reveal confidential information (information protected by the lawyer-client privilege):

(1) When the lawyer has been expressly authorized to do so in order to carry out the representation.
(2) When the client consents after consultation.
(3) To the client, the client’s representatives, or the members, associates, and employees of the lawyer’s firm , except when otherwise instructed by the client.
(4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law.
(5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client.
(6) To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer’s associates based upon conduct involving the client or the representation of the client.
(7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act.
(8) To the extent revelation reasonably appears necessary to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used.

Similarly, in New York (here is the New York Lawyers Code of Professional Responsibility in PDF format, see Canon 4 and DR 4-101; “confidence” is the equivalent of Texas’s “confidential information”), the lawyer may reveal

1. Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them.
2. Confidences or secrets when permitted under Disciplinary Rules or required by law or court order.
3. The intention of a client to commit a crime and the information necessary to prevent the crime.
4. Confidences or secrets necessary to establish or collect the lawyer’s fee or to defend the lawyer or his or her employees or associates against an accusation of wrongful conduct.
5. Confidences or secrets to the extent implicit in withdrawing a written or oral opinion or representation previously given by the lawyer and believed by the lawyer still to be relied upon by a third person where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud.

So under either regime, a lawyer is only permitted to reveal privileged communications in certain very narrow circumstances. None of those circumstances apply to the case that we’re discussing (when the judge asks you whether you have told your client about the plea offer), so if the fact of that communication is privileged, then the lawyer cannot reveal it unless (broadly) the client specifically consents, or the court orders it (and the court’s question is an order). If I’m right that that communication is privileged, I’m wrong that I may reveal it if revealing it helps the client, and Scott is wrong that he may reveal it if revealing it does not harm the client. If I’m wrong that that communication is privileged, I’m wrong that I may reveal it only if revealing it helps the client, and Scott is right that he may reveal it if revealing it does not harm the client.

So, whichever way you slice it, I’m wrong. But how wrong am I? should I be even more guarded with my communications to my client (the case if they are in fact privileged) or less?

Whether the fact of that communication is itself privileged may depend on the jurisdiction. In Texas State Courts, for example, according to Texas Rule of Evidence 503:

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client . . . between the client or a representative of the client and the client’s lawyer or a representative of the lawyer.


In criminal cases, a client has a privilege to prevent the lawyer or lawyer’s representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship.

So in Texas State Court, a communication between me and my client (both ways) is clearly privileged (even if it weren’t a confidential communication — it is, because I don’t intend for others to hear it — I learned by reason of the relationship that I told the client of the plea, so it is a privileged fact). If the judge asks me, “did you convey the offer to your client,” I cannot answer without my client’s express consent! I’m glad Scott compelled me to actually do the research to back up my position, because as it turns out that without the client’s consent I can’t even reveal facts I learned in the course of my representation that I think it would help the client to reveal. I’ll have to write consent into my contract.

In Federal court, I’m probably on much thinner ice telling the judge that what I’ve told my client is none of her business. Fortunately, I don’t have to do it often.

New York’s equivalent of TRE 503 is CPLR § 4503, which says in relevant part:

Unless the client waives the privilege, an attorney or his or her employee, or any person who obtains without the knowledge of the client evidence of a confidential communication made between the attorney or his or her employee and the client in the course of professional employment, shall not disclose, or be allowed to disclose such communication.

There’s probably some caselaw on what is “confidential” and what isn’t. So, what do you say, Scott, when you sit down in your fancy Manhattan office with your client and lay out the state’s plea bargain offer, is it confidential? Why or why not?

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0 responses to “Mea Maxima Culpa”

  1. Now I see your problem. You’re looking in the wrong place. The DRs are vague and often conflicting. They tend to speak with an overbroad sweep so that they provide little guidance and work best in speeches to PTA parents.

    However, since Courts have a constitutional imperative to assure that all defendants receive their rights as guaranteed by State and Federal Constitutions, they are obliged to make certain that defense counsel, like the prosecution and police, has fulfilled its duty to the defendant by inquiring whether counsel has done particular tasks that the Constitutionl mandates.

    There is no question that defense counsel has a duty to convey a plea offer.

    “Defense counsel have a constitutional duty to give their clients professional advice on the crucial decision of whether to accept a plea offer from the government. Boria v. Keane, 99 F.3d 492, 498 (2d Cir. 1996). See also United States v. Gordon, 156 F.3d 376, 379-80 (2d Cir. 1998) (per curiam). “Even if there might be circumstances where defense counsel need not render advice as to acceptance of a plea bargain, there can be no doubt that counsel must always communicate to the defendant the terms of any plea bargain offered by the prosecution.” Cullen v. United States, 194 F.3d 401, 404 (2d Cir. 1999).”

    Thus, the inquiry into whether counsel has fulfilled this specific function (i.e., “Have you conveyed the offer? Yes, Your Honor, I have.”) conveys no confidential information whatsoever, since counsel must convey the offer as a constitutional duty. It is a question of defense counsel’s having performed a mandate, and it not about the defendant at all.

    Looked at from the other side, the Court’s inquiry, and defense counsel’s response, is a query into whether the defendant’s rejection of the plea offer is knowing, intelligent and voluntary, since it cannot be if the offer was never conveyed. The Court cannot accept the rejection without a baseline inquiry into whether the defendant was ever told of the offer.

    And this, dear friend, is why the canon of ethics is inapplicable to the very limited inquiry above. It discloses nothing about the defendant whatsoever. It compromises nothing for the defense. It does not fall within the realm of a privileged communication because it is not a disclosure at all, merely a confirmation that the attorney has performed his duty and the defendant was afforded his constitutional rights in advance of his rejection of the plea. Nothing more. Nothing less.

  2. Scott,

    Thanks for the comment. I understand the argument; I don’t buy it.

    You and I both know that the courts’ “imperative to assure that all defendants receive their rights” is a joke. Even if it were an obligation that the courts took seriously (it’s not — look at all the low-bid V6s bleeding-and-pleading ’em down at your local freedom rending center without making the judges even blink), it wouldn’t trump our clients’ right to keep their business between us and them. What judges do, however, is put on as much pressure as we allow them to get our clients to plead guilty.

    Nor does the undisputable fact that we have a duty to convey a plea offer to the client negate the confidentiality of the communication: we also have a duty to do myriad other things (for example, to advise the client on whether to accept the offer, to investigate the facts, to research the law, to communicate with the client) and yet whether we have done so is privileged.

    I don’t know what you mean by the court’s acceptance of the rejection of the plea. In the United States (YMMV, and probably does, in New York), an accused does not have a right to a plea bargain. His rejection of a plea bargain (unlike, for example, his acceptance of a plea bargain) is not a waiver of any constitutional rights. If the accused rejects a plea offer, the court can’t then reject that rejection.

    Whether I conveyed an offer to my client becomes unprivileged only when my client waives the privilege. It becomes the court’s business only when my client chooses for it to be.

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