The Ethical Masochist’s Dilemma

Suppose that you have a client. The client, after thorough consultation with you, wants you to take some action. That action is in the best interest of the client, is legal, and is ethical.

You do it, right?

Now suppose that the action is not in the client’s best interest, but is legal and ethical.

Again, you do it. It’s not your call.

Now suppose that the action is in the client’s best interest and is ethical but is illegal.

You don’t do it.

Okay. Now it’s in the client’s best interest and legal, but is unethical.

Do you do it? No, of course not. Your ethics trump even the client’s interests.

But wait. Suppose that the only person who might be harmed by the ethical violation is the client, and that you’ve advised the client of this possible harm, and the client still insists that you take the action.

What do you do?

A ridiculous hypothetical? Unimaginable? Highly speculative? Nope. An everyday situation in federal criminal defense.

There are a few possible answers: advise the client to waive the 2255 (ethics be damned); advise the client to refuse the plea (client be damned); refer the client to conflict counsel (to advise the client independently on whether to waive the 2255); or move to withdraw (because there’s an irreconcilable conflict between your interest in maintaining your ethics and your client’s interest in the action).

None of them is a great answer. “Refer the client to conflict counsel” is least bad, but most criminal defendants in federal court don’t have resources to hire another lawyer to advise them on whether to waive the 2255. (Though asking the court for resources for such counsel, either under the CJA or in an Ake motion, might bring the point—that the government should not be asking for such a waiver in the first place—home to a federal judge better than anything else.)

7 responses to “The Ethical Masochist’s Dilemma”

  1. Mark-
    You make a very good point. It makes me wonder about the Court’s even accepting the standard pleas.

    I know the history. It was explained to me some time ago by a federal Chieftan.

    When the Evil Guidelines were enacted in 1987, the current waiver language was not in the std written plea agreement. As judges started imposing the consistently harsh guideline sentences, defendants started to appeal the harsh sentences. The US Attorneys office had lots of appeals on sentencing to deal with.

    Being the Federal Government, it didn’t take too long for the US Attorneys office to figure out a one size fits all “screw the defendant” remedy. The government simply changed the std written plea agreement to include the waiver of appeal language. That language came first. Later as I recall the Government added the waiver of 2255 or the Great Writ.

    There are three possible solutions. None of them are likely:
    1. Draw the Courts’ attention to this point and get them to lean on the govt to take the language out;
    ( not likely)
    2. Approach the US Attorney or AG and talk them into changing the language. ( far less likely)
    3. Unite the Defense Bar to universely refuse all such plea bargain. ( even less likely. Not to mention the ethical issues that might raise)

    Perhaps The Federal Public Defenders Office & a united CJA panel would Be in the position to take on this issue. Best position to Just Say No. But as cat herders we know that uniting the defense bar is very tough and extremely thankless. Nevertheless, wrong is wrong.

    Mark you are right to point out this wrong. I for one will join you in trying to right this wrong in the ” criminal ” justice system. I will add it to the list.

    Robb Fickman

  2. Mr. B., the old Plea Bargain dilemma in an unethical vs. ethical Post with multiple catch 22’s. This should be on an exam or two if it’s not already.

    The legal industry is at a point in time that most thought that they’d never experience. Never before have we seen or heard attorneys’ / lawyers’ from coast to coast speaking up publically about the ‘wrongs’ built into the system to pervert justice as we’ve witnessed lately. With the President & the 1st Lady both being in the club, we can only hope they also get on board with righting wrongs. Speaking on behalf of the victims’ of the system (of Texas & beyond), we thank you & fellow champions’ of judicial reform for all that you do (and plan to do) on behalf of others.
    Re: the Plea Bargain, the loophole that allows the guilty as sin to be spared the rightful punishment they truly deserve & forces the innocent to consider perjuring themselves by falsely confessing in order to avoid possible 99 year sentences. Not to mention the real criminal being ignored & free in the later. –
    In the process of righting wrongs, I beg the champions’ to consider adding the following to the ever growing reformation list, ASAP;

    *Abolish the practice of allowing Non-CDLs to dabble in felony jury trials. A real life WTF? Why in the world this is allowed is beyond comprehension.

    *If the Defense wishes to TapOut and Plea Bargain their client’s case after the jury has been seated, mandatory documentation of the entire process by court reporter(s) would be ethical along with it (Document) officially being part of the ‘entire’ case file. Including the reason(s) ‘why’ it’s in the client’s best interest. Waiting till trial day just seems unethical.

    *Abolish the practice of allowing the Defense to consult with clients’ in holding cells (echo-chambers) within ear-shot of other humans. Especially during attempt(s) to illicit a Plea Bargain. Attorney / Lawyer – client confidentiality is a joke when everyone is allowed to participate.

    *Abolish the practice of allowing secrete hush-hush Plea Bargain(s) to take place in the Judge’s chambers (aka: the Griffith Plea) where the court reporter is instructed to exclude the Q. & A. portion between the Judge & Defendant and where Not Guilty is crossed out with Nolo Contendere / No Contest being penned in over it and recorded as taking place in “OPEN COURT”. (I could be wrong but – Defendant’s should never be taken into the chambers, where the ink pen could be jammed into everyone’s juggler veins’,)

    *If a Defendant is on probation at time of arrest on a new unrelated charge & the Defense convinces him / her to stop the jury trial to Plea Bargain for 10 years and be out in a 3 vs. taking a chance on 99 years, (adding that “you are going to prison just for being arrested, guilty or not”), being automatic grounds for disbarment / sanctions & jail time – based on unethical legal advice distribution in order to avoid the rest of the trial. Clients’ deserve a jury trial to verdict if they plead Not Guilty, lying to them just to get out of it should be a crime. (Like Mr. Fickman said – “Just say no” to the ADA and let the jury do thier duty. Cients’ can appeal verdicts’ vs. not if they TapOut.

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