Professional Responsibility in Criminal Defense Practice

Transcription

1 Professional Responsibility in Criminal Defense Practice WW w. LawofCriminalDefense. com by John Wesley Hall, Jr. Criminal Defense Lawyer Previously published as Professional Responsibility of the Criminal Lawyer (1st ed. 1987; 2d ed. 1996) n- '..-.1 Mat # THOIVISOIM ^ WEST For Customer Assistance Call

2 TAL RESPONSIBILITY "or the crime creise counsel sought to imitting shooting; it lave known of staterformance). aders v. Ratelle, 21 )n of separate prime L247, 1252 (9th Cir. Chapter 15. -'';: ;"' \,\ "'^ ','.' / ' Ethical Duties in Plea Discussions Research ;References vvww.lawofcriminaldefense.com Text References, '. Am! Jur. 2d, Criminal Law 60q to 769 West's Digest References Criminal Law <S=>261 to 301 ^ KeyCite ; Cases an(i other legal materials listed in KeyCite Scope can be researched through the KeyCite service on Westlaw. Use KeyCite tp, check citations for form, parallel references, prior and later history, aiid comprehensive citator information, including citations to other decisions and secondary niaterials. L INTRpDUCTION 15:1 Introduction ' :., IL GENERALLY:" 15:2 Duty to explore diversion of the case > \v,,. 15:3 Duty of candor between attorneys in plea discussions,, ;; 15:4 Prosecutor'si duties in plea discussions,.< '^ 15:5 Publicity regarding possibility of plea III. DEFENSE COUNSEL'S DUTIES 15:6 Generally,,-. f, :.,., 15:7. The duty to negotiate,,- ;} -,.:. 15:8 Duty to fully advise the client ' 15:9 "Conflicts of interest in plea bargaining.- 15:10 The client who maiiitaiiis innocence 15:11 Advising whether to cdbperate or become inforinants 15:12 The Moral Contmdrum of Representing the Rat L INTRODUCTION 15:1 Introduction In the halls of justice... the only justice is in the halls ' '.: Lenny Bruce i Plea bargaining is a necessary part of the criminal justice 629

3 15:1 PROFESSIONAL RESPONSIBILITY ETHICAL DUTIES system. It is apparent to all in the criminal justice system that 95% of all cases, both state and federal, are disposed of by guilty pleas.^ Plea bairgaining obviously has a great influence on this. To be induced to accept a guilty plea, the accused must usually have something to gain by doing it. In 1977, the Supreme Court said in Blackledge V, Allison:^ Only recetitly has plea bargaining become a visible practice accepted as a legitimate component tn the administration of criminal justice. For decades it was a sub rosa process shrouded' in secrecy and deliberately concealed by participating defendants, defense lawyers, prosecutors, and even judges. Indeed, it was not until our decision in Santobello v. Nevy York, 404 U.S. 257, that, lingering doubts about the legitiriiacy of the practice were finally = dispelled.^.,, In Santobello v. Nexv York"^ the Supreme Court said: Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable piart for many reasons, tt leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pre-trial confineirient for those, who'are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pre-trial release; and, by shortening the time betweeni charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned.^ Whatever the merits or demerits of plea bargaining, it is a necessary evil in the American system of criminal jilstice. The system supposedly would collapse under its own weight without it^ but this may not necessarily be a valid assumption. Both prosecutors and defense counsef have a duty to explore [Section 15:1] 'Brady v. U.S., 397 U.S. 742, 753, 90 S. Ct. 1463, 25 L. Ed. :2d 747 (1970). Comment, Plea Bargaining IVIishaps The Possibility of Collaterally Attacking the Resultant Plea of Guilty,.^65 J; Crim. L. 170 (1974); D.A. Jones, Negotiation, Ratification, and Rescission of the Guilty Plea Agreement; A Contractual Analysis and Typology, 17,r)u{iuesne L. Rev. 591, 592 (1978)., _ Under the pressure to plead guilty, for sentencing concessions under the U.S. Sentencing Guidelines, in some districts the plea rate is 97-98%. ^Blackledge v. Allison, 431 U.S. 63, 76, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977). ^Blackledge, 431 U.S. at 76 (footnotes omitted), citing Santobello v. Neiv York, infra. "Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971). ' ' ^ ^Santobello v. New York, supra, 404 U.S. at 261 (footnotes omitted), citing Brady v. U.S., 397 U.S. at :. ^Eliminating plea bargaining in some jurisdictions (most notably Alaska) disposition ofa I into a plea agr^ ^ Plea bargaii I ments for all ^ greater on def( i can result in : tions, malpraci f IL GENERA f 15:2 Duty l I If the nature I counsel shoul [ diverted.from \ duty in the; ex( l has not had a gi - Alaska's Ban on : A.B.A. J. 26 (198! I Also, experie: [ ing Guidelines at ; the number of tri i creative in thei: I downward depari \ number was agai ; trial in. the fc \ imconstitutioinal : ^See 15:2i 'See 15:4, : ^For ineffecth ; conflict of interes \ '"See 31:13. \ [Section 15:2] I ABA Stds., 1 ; Whenever the ; should explore tl i cess through the [ 'ABA Stds., '. \ Prosecution, >1 [ I In determiii: I factors should be \ The nature an ; Any special ch [ Whether the d i Whether ther< ; from the diversi( \ Whether an a-' i 630

4 X RESPONSIBILITY ice system that sed of by guilty ence on this. To [st usually have eine Court said ble practice aeration of crimishrouded' in seig defendants, eed, it was not U.S. 257, that ice were finally ' id: not only an espart for many osition of most )act of enforced ^-ho are denied those accused uct even while )etween charge ; rehabilitative aprisoned.^ ling, it is a necice. The system without it, but duty to explore d. :2d 747 (1970). of Collaterally At- 1974); D.A. Jones, lea Agreement: A 1,592(1978)., ; sessions under the 19,7-98%., 52 L. Ed. 2d 136 Santobello v. Neiv 30 L, Ed. 2d 427 tes omitted), citing st notably Alaska) ETHICAL DUTIES IN PLEA DISCUSSIONS 15:2 disposition of a case without trial either by diversion' or entering into a plea agreement.. Plea bargaining now has constitutional and ethical requirements for all the attorneys involved. The burden is obviously greater on defense counsel. Failure to follow these requirements can result in ineflfective assistance claims, reversal of convictions, malpractice,^" and even professional discipline. II. GENERALLY 15:2 Duty ib explore diversion of the case If the nature and circumstances of the case warrant it, defense counsel should explore the possibility that the case can be diverted from the criminal process.^ Prosecutors also have such a duty in the exercise of their prosecutorial discretion.", has not had a great impact on the number of guilty pleas. See Rubenstein, Alaska's Ban on Plea Bargaining ih Plea Bargaining (1980);' Lawscope, 69 A.B.A. J. 26 (1983)..«' Also, experience showed that mandatory minimums and the U.S, Seritencing Guidelines at first caused only a slight increase in the number of trials'but the number of trials then declined as prosecutors and defense lawyers got more creative in their crafting plea agreements to seek to tak^ advantage of downward departures. Already a system marked by its'lack'of jury trials; the number was again cut by two-thirds. Frankly, there are penalties for going to trial in the federal system, and everybody knows it..yet, it is not unconstitutioinal. :. ;! 'See a5:2. ' ;, -.. : ;. : ^ 'See 15:4, 15:6. ^ - ^For ineffective assistance issues in plea bargaining, see 10:26-10:27. For conflict of interest issues, see 14:22. -''-'' ^ See 31:13. ; [Section 15:2] ABA Stds., The Defense Function, Std (a): V Whenever the la^, nature, and circilihstances 6f the case permit, defense counsel should explore the possibility of an early diversion of the case from the cximinalpro- - cess through the use of other community agencies. ' '. 'ABA Stds., The I?rosecution Function,. Std ; see Principles of Federal Prosecution, U.S,^.Attorney's Manual,, , 9-27.,600-.,630, specific hyperlink in 1:12. '. In determining whether tp agree to diversion of a defendant, the following factors should be considered: _,., The nature and severity of the offense;,. ' ', ' Any special characteristics or difficulties of the-offender;, V Whether the defendant is a first-time offender; i: Whether there is a probability that the defendant wiu cooperate with and benefit from the diversion program;. - Whether an available program is appropriate to the needs of the offender; 631

5 15:3 15:3 'PROFESSIONAL RESPONSIBILITY Duty of candor between attorneys in plea discussions Both sides to plea discussions have a duty of ppennessv and candor, and a prosecutor or defense counsel "should not know-' ingly make false statements concerning the evidence in the cburse of plea discussions with" opposing counsel.' This rule derives from the ethical duty not to'kiiowihgly misstatelaw or fact to a' court or any person.' Observation: Candor in plea discussions is essential for all lawyers involved.'' Lack of caiidor frustrates future dispositions by plea since attorneys will be reluctant to enter into plea ; s discussions with other attorneys they no longer trust,^ ; Statements inade by defendants, defense lawyers, and'prosecutors during plea discussions are not admissible in evidence The impact of diversion upon the community; Recommendations of the iavolved law enforcement agency;, r Whether the defendant is likely to recidivate;.consideration for the opinion of the victim; Provisions for restitution; and.,., Any mitigating.circumstances.,, NDAA, National Prosecution Standards Std [Section 15:3] i ''B. Gamer & J. Pettyj A Plea for Opermess in Plea Bargaining, 16 Gonzaga L. Rev. 81(1980). Comment: Lawyers generally have a duty of fairness and openness. See Ch 3. 'ABA Stds., The Defense Function, Std. 4-6,2(b); ABA Stds., The Prosecution Function, Std (c). See In re Shafir, 92 N.J. 138, 455 A.2d 1114 (1983). 'RFC Rules 3.3(a), 4.1; CPRDR 7-102(A)(5); Cal. Bus. &; Prof. Code 6068(d). See Gleason v. Title Guarantee Co., 300 F.2d 813 (5th Cir );,Monroe v. State Bar of Cal., 55 Cal. 2d 145,.10 Cal. Rptr. 257,, 358 P.2d 529 (1961); In re Brown, 279 S.W.2d 773 (Ky. 1955); In re Mohn, 149 Minn., 373, 184 NiWi.l4 (1921); In re Wines, 370 S.W.2d 328 (Mo. 1963). "See Ch 3 on the duties of fairnessy'honesty, and candor. '.' ' 'ABA Stds., The Defense Function, Std ,' Commentary; ABA Stds., The' Prosecution Function, Std , Commentary. ' '- 'Statements iriade to police officers without the power to naake plea agreements are not privileged, but some police officers can hold themselves out as plea bargainers. Compare Rachlin v. U.S., 723 F.2d 1373, 14 Fed. R. Evid. Serv (Sth Cir. 1983) (police ofiicers clearly had no power to bargain at time statement was made) with State v. Hovind, 431 N.W.2d 366 (Iowa 1988) (where officers informed the defendant that'his plea bargain was in jeopardy and read him his rights, he was justified in believing that his ensuing stateriierifs were privileged). ETHICAL DUTIES should the cas Federal proi ment where ai agreement ca: agreement by'. The defense, contradicting 1 to it," inviting up to his or he 'Fed. R. Evid. Manual, Crimina chael H, Graham, See, e.g., U.S: Cir. 1978), on reh 1356, 1367, 3 Fed 1137, (6t Annotation: ^ with plea bargain: 'See Fed. R. C See U.S.'v. S Cir. 1991): Plea agreements, formation that is substantive evide standard plea agr( "No statemen' the govemment impeachment si testimbny matei during the proffi United States v. '. Sept. 21, 1987) (qi signing the plea a purposes of impea *Fed. R. Crim. Serv. 831 (3d Cir. (defendant's admii rape victim witho trial that she cons ^'People V. Jach "U.S. Attomey 1:12; State v. Ch the defendant had "People V. DeB (3d Dist. 1990). 632

6 \L RESPONSIBILITY plea [ openness^ and lould not knowice in the course lis rule derives law or fact to a' s.ential for all e dispositions ter into plea ;;; ust'' rs, and prbsecuble in evidence [aining, 16 Gonzaga 3 and openness. is.. The Prosecution :'rof. Code 6068(d). iir. 1962);, Monroe V. 2d 529 (1961); In re L.,373,,184N:W.,14 ary; ABA Stds.', The ;o iriake plea agree- 1 themselves out as tfed. R. Evid. Serv. to bargain at time (Iowa-1988) (where 1 jeopardy and read ng statemerits were ETHICAL DUTIES IN PLEA DISCUSSIONS 15:3 should the case go to trial.' Federal prosecutors have the defendant sign a proffer agreement where an3d;hing said in the proffer toward an expected plea agreement cannot be used unless the defendant breaches the agreement by later contradicting the proffered statement.' The defense, however, can waive this by: testifjdng and directly contradicting the content of the prior discussion, first testifying to it," inviting it," or testifying that the prosecutor'does not live up to his or her agreements." 'Fed. R. Evid. 410; U. R. Evid. 410; Fed. R. Crim. P. 11(e)(6); U.S. Attorney's Manual, Criminal Resource Manual, 627, in 1:12. See,1 Michael H. Graham, Handbook of Federal Evidence et seq., (5th ed. 2000). See, e.g., U.S. v. Geders, 566 F.2d 1227, 1231, 2 Fed. R. Evid. Serv. 952 (Sth Cir. 1978), on reh'g, 585 F.2d 1303 (5th Cir. 1978); U.S. v. Robertson, 582 F.2d 1356, 1367, 3 Fed. R. Evid. Serv (5th Cir. 1978); U.S. v. Brooks, 536 P.2d 1137, (6th Cir. 1976); U.S. v. DiLoreto, 888 F.2d 996 (3d Cir. 1989). > Annotation: Admissibility of defense communications made in connection with plea bargaining, 59 A.L.R. 3d 441. 'See Fed. R. Crim. P. 11(e)(6); Fed. R. Evid See U.S. V. Stevens, 935 F.2d 1380, 1396, 33 Fed. R. Evid. Serv. 831 (3d Cir. 1991): Plea agreements, for example, commonly contain a provision stating that proffer information that is disclosed during the course of plea negotiations is inadmissible as substantive evidence of guilt, but is admissible for purposes of impeachment. The standard plea agreement provides: "No statements made or information provided by [the defendant] will be used by the govemment directly against her, except for the purpose of cross-examination or impeachment should she be a witness in any criminal trial or proceeding and offer testimbny materially different from any statements made or information provided during the proffer...." United States v. Nemetz, No C, slip op. at 2-3, 1987 WL (D. Mass. Sept. 21, 1987) (quoting a standard plea agreement) (holding that the defendant, by signing the plea agreement, waives the protection of Fed.R.Crim.P. 11(e)(6) for the purposes of impeachment).»fed. R. Crim. P. 11(e)(6); U.S. v.,stevens, 935 F.2d 1380, 33 Fed. R. Evid. Serv. 831 (3d Cir. 1991); State v. Hansen, 194 Mont. 197, 633 P.2d 1202 (1981) (defendant's admission during plea bargain to having intercourse with alleged rape victim without her consent was admissible when defendant testified at trial that she consented). "People V. Jackson, App. 3d 700, 321 N.E.2d 420 (1st Dist. 1974). "U.S. Attorney's Manual, Criminal Resource Manual 627, in 1:12; State v. Christian, 245 S.W.2d 895 (Mb. 1952) (defense counsel asked if the defendant had ever admitted doing the act). ' "People V. DeBeck, App. 3d 15, Dec. 385, 561 N.E.2d 1081 (3d Dist. 1990). 633

7 15:4 PROFESSIONAL RESPONSIBILITY 15:4 Prosecutor's duties in plea discussionsv Plea bargaining by the prosecutor is a part of prosecutorial discretion which should be exercised.' There is, however, no constitutional obligation for a prosecutor to plea bargain with all defendants.^ While prosecutorial discretion in plea bargaining is not generally subject to judicial review, except for some facially improper motive* or conduct,' the prosecutor is subject to disciplinary action for exercising prosecutorial discretion with an irnproper motive.' Comment: State prosecutors are almost always elected officials, and they are thus always cognizant of political influ- ' ences in the exercise of their prosecutorial discretion. Thus, a prosecutor can legitimately choosd to submit a case to a jury ' for resolution rather than plead it out and suff'er the political - consequences of a plea being too lenient for the public. A prosecutor's office should have written policies on the exercise of prosecutorial discretion,' including standards for plea bargaining.' Checklist: The following factors should govern prosecutorial discretion in plea bargaining, and defense counsel should consider them in determining how to approach a possible plea agreement: 1. The defendant's willingness to cooperate in the investigation or prosecution of others; 2. The defendant's history with respect to criminal activ- 3. The nature and seriousness ofthe offense or offenses [Section 15:4] ''A.W. Alschuler, Prosecutor's Role in Plea Bargaining, 36 U. Chi. L. Rev. 50 (1968). 'NDAA, National Prosecution Standards, Std (2d ed. 1991), 'Weatherford v. Bursey, 429 U,S. 545, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977). "For example, a prosecutor could not use an improper basis such as race, religion, or nationality on which to plea bargain. Oyler v. Boles, 368 U.S. 448, 456, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962). See also Wayte v. U.S., 470 U.S. 598, 105 S. Ct. 1524, 84 L. Ed. 2d 547 (1985). 'Prosecutors cannot thi'eaten or overreach the defendant during the bargaining process. See Machibroda v. U.S., 368 U.S. 487, 82 S. Ct. 510, 7 L. Ed. 2d 473 (1962). 'In re Rook, 276 Or. 695, 556 P.2d 1351 (1976) (prosecutor's refusal to bargain with defendants as long as they were represented by two particular attorneys was prejudicial to administration of justice and warranted a public reprimand). 'ABA Stds., The Prosecution Function, Std (a). 'See NDAA, Std (2d ed. 1991). ETHICAL DUTIES ch 4. Tl wi CO 5. Tl th 6. Tl 7. Tl 8. Tl : de 9. Tl.,. th 10. Tl 11. Tl pe 12. Tl When a pie; should be reqn lation to the n an adequate f sentence, and' cution of other As much as ated defendan course, some they are not s: be given a pie should be wilh position of casi A prosecute] unless the de circumstances, cuted plea ag ^U.S. Attorne; elaborated upon ii See also ND.A "See DOJ, Prii serious provable c ers the likely sen 1:12. "NDAA, Std. 6 See In re Roo "ABA Stds., T] "ABA Stds., T] 634

8 RESPONSIBILITY prosecutorial, however, no irgain with all bargaining is some facially is subject to retion with an! elected ofitical influon. Thus, a 56 to a jury ;he political lie. on the exercise irds for plea I prosecutonsel should ossible plea ate in the minal activ-! or offenses U. Chi. L. Rev ). Ed. 2d 30 (1977). asis such as race, les, 368 U.S. 448, J.S., 470 U.S. 598, uring the bargain- LO, 7 L. Ed. 2d 473 cutor's refusal to two particular atarranted a public ETHICAL DUTIES IN PLEA DISCUSSIONS 15:4 charged;,. 4. The defendant's remorse or contrition and his/her willingness to assume responsibility for his/her conduct; 5. The desirability of prompt and certain disposition of the case; 6. The likelihood of obtaining a conviction at trial; 7. The probable effect on witnesses; 8. The probable sentence or other consequences if the : defendant is convicted; 9. The public interest in having the case tried rather, than disposed of by a guilty plea; 10. The expense of trial and appeal; 11. The need to avoid delay in the disposition of other pending cases; and 12. The effect upon the victim's right to restitution.^ When a plea is considered by the prosecutor, the defendant should be required to plead to charges that bear a reasonable relation to the nature and extent of the defendant's conduct, have an adequate factual basis, will likely result in an appropriate sentence, and do not adversely affect the investigation and prosecution of others." As much as possible, a prosecutor should treat similarly situated defendants equally in the plea bargaining process." If, of course, some defendants are more culpable than others, then they are not similarly situated and less culpable defendants can be given a plea agreement that others are not. The prosecutor should be willing to consult with defense counsel concerning disposition of cases by plea." A prosecutor should not fail to comply with a plea agreement unless the defendant does so or there are other extenuating circumstances." If the prosecutor breaches a promise on an executed plea agreement, the defendant can withdraw the plea *U.S. Attorney's Manual (A), in 1:12. They are elaborated upon in (B). See also NDAA, Std. 68.1, providing a lengthy but similar list of factors. "See DOJ, Principles for Federal Prosecution Std D(3)(1980). Now, the most serious provable charge that has a factual basis should be filed and that considers the likely sentence. U.S. Attorney's Manual , in 1:12. "NDAA, Std See In re Rook, 276 Or. 695, 556 P.2d 1351 (1976). "ABA Stds., The Prosecution Function, Std (a). "ABA Stds., The Prosecution Function, Std (c). 635

9 15:4 PROFESSIONAL RESPONSIBILITY because the plea lacks consideration.''" A plea bargain is not an offer and acceptance type of contract until actually signed by the parties or entered into before fhe court." If a prosecutor must withdraw or cannot fulfill a condition of a plea offer, that fact should be communicated promptly to the defense." Civility and common courtesy to other attorneys require no less. A prosecutor cannot engage in plea discussions with a represented defendant except with consent of counsel." When dealing with an unrepresented defendant, a recording or writing of the discussions and their result should be preserved to avoid assertions of coercion or undue influence because of unequal bargaining positions.'" 15:5 Publicity regarding possibility of plea^ Publicity by attorneys or police' of the possibility of a guilty plea being entered in a case, including a plea by a codefendant who will turn state's evidence,' is prejudicial to the accused and is ethically and constitutionally prohibited." Observation; It may be required that the defense show that the prosecutor had the power to negotiate in that case. See Zamora v. State, 422 So. 2d 325 (Fla. Dist. Ct. App. 3d Dist. 1982). Practice Aids: Government's Breach of Plea Bargain, 27 Am. Jur. Proof of Facts 2d 133. ^"Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971). "Mabry v. Johnson, 467 U.S. 504, 104 S. Ct. 2543, 81 L. Ed; 2d 437 (1984) (defendant accepted plea offer and then prosecutor withdrew it; no due process violation).,. Annotation: /Right of prosecutor to withdraw from plea bargain prior to entry of plea, 16'A.L.R. 4th "NDAA, Std "RPC Rule 4.2; CPR DR 7-104(A); Cal. RFC 2-100(A); ABA.Stds., The Prosecution Function, Std, 3-4.1(b). "ABA Stds., The Prosecution Function, Std (b) & Commentary; NDAA, Std, [Section 15:5] ^See 12:16 for a fuller discussion. 'See 12:23 on the prosecutor's duty to control the public statements of police which could prejudice the accused, 'U.S. V. Thompson, 615 F.2d 329, 5 Fed. R. Evid. Serv (5th Cir. 1980). "RPC Rule 3.6(a); CPR DR 7-107(B)(2); discussed in 12:16. Observation: While these public statements usually are made by prosecutors, it is not unheard of for defense counsel to make them expecting the client to plead, and then have the client or the court ETHICAL DUTIES I III. DEFENS: 15:6 Geherj A criminal de the prosecutor, in plea discuss: the defendant negotiating wi entered, the del Preliminary because it deals 15:7 The du As a general ate a plea as ft reject the plea [Section 15:6] ^Annotation: Ac regarding plea barj See 10:26- bargaining. 'ABA Stds., Th See U.S. V. Th (3d Cir. 1979) (whi showed plea knowi Where no plea U.S., 575 F.2d ). 'See, e.g., Buc Blackburn, 597 F,2 " Cpninient: the subject wi npt^ how;eyer, subject was dis See ABA Stds. [Sectioln i5:7] ''Annotations Ac regarding plea bar] 'Akridge.v. Hoj F.2d 978 (8th Cir. affd, 547 F.2d 116; 424 (1977); People 1980), opinion vacs Schoonover.y. Stat not to negotiate). 636

10 \L RESPONSIBILITY irgain is not an ly signed by the a condition of a )romptly to the ttorneys require IS with a repre- " When dealing r writing of the. to avoid assernequal bargainlility of a guilty y a codefendant the accused and show that the See Zamora v. in, 27 Am. Jur., 30 L. Ed. 2d 427,. Ed. 2d 437 (1984) ff it; no due process 3a bargain prior to $A Stds., The Proseommentary; NDAA, ic statements of po-.225 (5th Cir. 1980). :16. ly are made by to make them nt or the court ETHICAL DUTIES IN PLEA DISCUSSIONS 15:7 m. DEFENSE COUNSEL'S DUTIES 15:6 Generally' A criminal defense lawyer may engage in plea discussions with the prosecutor, although ordinarily the client's consent to engage in plea discussions should be obtained in advance.' Ordinarily, the defendant will be unable to show prejudice by counsel's negotiating without authority because, without a plea being enteredj the defendant cannot usually be harmed by it.' Preliminary plea discussions do not require client approval because it deals with hypotheticals.* 15:7 The duty to negotiate', As a general rule,.defense counsel has no duty to try to negotiate a plea as far as effective assistance of counsel is concerned,' reject the plea ofi'er and the case go to trial. [Section 15:6] '^Annotation: Adequacy of defense counsel's representation of criminal client regarding plea bargaining, 8 A.L.R. 4t]i 660. See 10:26-10:27 on ineffective assistance claims relating to plea bargaining. 'ABA Stds., The Defense Function, Std (b)., See U.S. v..thomas, 470 F. Supp. 968 (E.D. Pa. 1979), alfd, 612 P,2d 575 (3d Cir. 1979) (while accused claimed he was unaware uritil time of ple,a, record showed plea knowing and voluntary). Where no plea was entered, the accused can show no prejudice. Buckelew v. U.S., 575 F.2d 515 (5th Cir. 1978); Cousin v. Blackburn, 597 F.2d 511 (5th Cir. 1979).. ' ' ', ' ' ; ' " 'See, e.g., Buckele-yy.v. U.S., 575 'f:,2d,515 (5th Cir., 1978); Cousin v. Blackburn, 597 P.2d 511 (5th Cir. 1979), both cited in the previous note. " Comment: If the client has no intention of pleading, even broaching the subject with the client may create distrust. Defense counsel does i. not, however, have to tell the client who will not bargain that the subject was discussed vifith the prosecutor. See ABA Stds., The Defense Function, Std (b), Commentary. [Sectioln IS:"?]. 9' ''. -- /, '.,','', ^Annotation: Adequacy of defense counsel's representation of criminal client regarding plea bargaining, 8 A.L.R. 4th 660. 'Akridge.v, Hopper, 545 P,2d 457 (5th Cir, 1977); Reynolds V; Mabry, 574 F,2d 978 (8tli Cir, 1978); Martinez v, U,S., 411 F, Supp (D.N.J. 1976), aftd, 547 F.2d 1162 (3d Cir. 1977); Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977); People v. Wright, 107 Gal, App. 3d 372,165 Cal, Rptr. 631 (5th Dist. 1980), opinion vacated, 30 Cal. 3d 705, 180 Cal. Rptr, 196, 639 P.2d 267 (1982); Schoonover y. State, 218 Kan. 377, 543 P.2d 881 (1975) (defendant told counsel not to negotiate). 637,

11 15:7 PROFESSIONAL RESPONSIBILITY particularly where the prosecutor has no incentive to negotiate.' Defense counsel also has a duty to fully inform the defendant ofthe consequences of a trial; e.g., a jury could sentence the defendant to death" or a trial could result in too many aggravating circumstances getting before the sentencer. J.,, :: Counsel has a duty to try to negotiate when there are. obvious benefits to be gained by the accused.' These, issues, of course, are, always viewed through the convicted defendant's hindsight.' Obviously, prejudice has to be proved by the accused, and prejudice virtiially always will be hypothetical,' although some circumstances can be envisioned where prejudice can be readily articulated. Recommendation: Some criminal defense attorneys have a policy of never permitting a client to "rollover" on other ' defendants or potential deferidahtsv Defense attorneys who hold this view have a duty to disclose it to the client so the client can make an informed choice of counsel. It may sometimes be possible to work out a plea agreement which would involve the client's testimony, and'failure to do so' could be ineffective assistance.' 15:8 Duty to fully advise the client' "After informing himself or herself fully on the facts and the 'Burger v. Kemp, 483 U.S. 776; ,1C)7 S.Ct. 3114, 97 L., Ed. 2d 638 (1987) (defense counsel not ineffective for not pilea bargaining in capital case where prosecutor had no incentive to bargain for k life sentence anyway), ' "Evans.v. State, 477 S,W.,2d 94 (Mo. 1972).,',\, /r :'''',, 'See Mason v. Balcom, 531 F.2d 717 (5th Cir. 1976) (criticizing the "assembly line" nature of representation afforded the accused where the defendant could have likely obtained a plea agreement in exchange for testimony). ' See also Cole'v. Slayton, 378 F'. Supp. 364 (W.D, Va. 1974) (lawyer was ineffective who did not seek plea of prepare since he concluded accused had no defense).' ' ' ' ' ' '. > Practice Pointer: Merely alleging that defense counsel failed to try to plea bargain will not be enough. To establish prejudice (see 10:8), it will be necessary to show that the prosecutor woul4 have seriously considered a plea to something. See, e.g, Burger v. Kemp, 483 U.S. 776, 107 S. Ct. 3114, 97 L. Ed. 2d 638 (1987). Indeed, ifthe client insists '' upon his innocence, there is nothing to bargain for or about.see 15:lD! 'See People v. Turner, App. 3d 847, 323 N.E.2d 371 (3d Dist. 1075). 'See 10:8.' ','., '; ','' 'y. 'Scie, e.g.. Mason v. Balcom, 531 F.2d 717 (5th Cir, 1976), See 15:12.,, [Section 15:i8] ' : ''Arewotaijore; Adequacy of defense counsel's representation of criminal client regarding plea bargaining, 8 A.L.R. 4th ETHICAL DUTIES law, defense c candor conceri estimate of the should not in hazards, or pre accused's decis has a duty: to ramifications o: The duty to ; promptly' advif thiere is a vailic ineffective ass: prosecutor." C 'ABA Stds., Tt For cases reji counsel recommen equacy of defense bargaiiiirig, 8 A.L. : 'ABA Stds.; Ti "Isblev, U,S Supii. 495 (W.D. V A,L,R,4th 1 (1978: (counsel apparent] he said were to be For cases for defense cciunsel's ] A.L.R. 4th 'See 9:17. 'McAleney v. I munication of offe: 'ABA Stds., Ti ^RPC Rule 1.4; ' 'u.'s. V. Robei advise of governm of counsel); Elmoi agreement is an i agreement betwee duty to advise his N.C. App, 294, 30! Keith N, Byst Uphoff, Ed., Ethic «RPCRuleL4( necessary to per: representation,"). See 10:26. "See Harris v. 638

12 .L RESPONSIBILITY 3 to negotiate.' 1 the defendant entence the demy aggravating ere are obvious s, of course, are, it's hindsight.' Lsed, and prejufh some circum- ;an be readily torneys have sr" on other torneys wko :nt so the clily sometimes,.rould involve De ineffective e facts and the :, 97 L. Ed. 2d 638 ing in capital case nee anyway). 3riticizing the "ashore the defendant testimbny), '; 1974) (lawyer was led accused had no 3ei failed to try,ce'(see 10:S), have seriously, 483,U.S. 776,. e client insists ut.-see 15;10: 1 (3d Dist. 1,975)..See, 15:12: '', n of criminal' client ETHICAL DUTIES IN PLEA DISCUSSIONS 15:8 law, defense counsel should advise the accused,with complete candor concerning all aspects ofthe case, including a candid estimate ofthe probable outcome."' In addition, "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."' Defense counsel also has a duty to fully apprise the client of the effect and all the ramifications of the plea." The duty td keep the client informed' includes accurately- and promptly' advising the client of all plea offers' and their effect.' If th^re is a valid tactical reason for not telling the client, it is not ineflfective assistance to not pass on a tentative offer from the prosecutor." Counsel's or the client's misunderstanding of the 'ABA Stds.,The Defense Function, Std (a). For cases rejecting allegations of ineffective assistance because defense counsel recommended acceptance br rejection of a plea offer see Annotation: Adequacy of defen.se counsel's representation of criminal client regarding plea bargaining, 8 A,L,R. 4th & 9, respectively. : 'ABA Stds., The Defense Function, Std. 4-5.i(b). ' ' " "Isblev, U.S., 611 F.2d 173 (6th Cir. 1979); Jennings v. Zahradnick, 455 P, Supp. 495 (W.D. Va, 1978); Com. v. Napper, 254 Pa. Super, 54, 385 A.2d 521, 10 A,L.R;4th 1 (1978); Ex parte Bratchett, 513 S.W.2d 851 (Tex. Crim: App; 1974) (counsel apparently misrepresented what would happen to other charges which he said were to be dismissed; plea held involuntary). For cases for and against this proposition, see Annotation: Adequacy of defense counsel's representation of criminal client regarding plea barg;aining, 8 A.L.R.:4th660 7[c]. 'See 9:17. 'McAleney v. U.S., 539 P.2d 282 (1st Cir. 1976) (attorney's incompetent communication of ofi'er to lesser charge justified setting aside plea),, 'ABA Stds., The Defense Function, Std, 4-6.2(b), f 'RPC Rule 1.4; CPR EC 7-8, 9-2; Cal. RPC ,, ' 'U.S, V. Robertson, 29 P, Supp. 2d 567, 571 (D. Minn. 1998) (failure to advise of government's oifef of cooperation agreement was ineffective assistance of cbuiisel); Elmore v. State, 285 Ark. 42, 684 S.W.2d 263, 264 (1985) ('*a plea agreement is an agreement between the accused and the prosecutor, not'aii agreement between counsel and the prosecutor.... As such, counsel has the duty to advise his client of an offer of a negotiated plea."); State v. Simmons, 65 N.C. App, 294, 309 S.E.2d 493 (1983), Keith N. Bystrom, "Communicating Plea Offers to the Client," in Rodney J. Uphoff', Ed., Ethical Problems Facing the Criminal Defense Lawyer 84 (1995), *RPC Rule 1.4(b) ("A lawyer shall explain a, matter to the extent reasonably necessary to permit the client to make informed decisions regarding: the representation.").,. See 10:26.., ; "See Harris V. State, 437 N.E.2d 44 (Ind. 1982). 639

13 15:8 PROFESSIONAL RESPONSIBILITY ETHICAL DUTIES B possible punishment" or parole eligibility" can vitiate a plea." : Failure to pass on a plea offer that would be accepted by the defendant can be malpractice.''''.,,1,': 15:9 Conflicts of interest in plea bargaining' "Defense counsel should not seek concessions favorable to one client: by any agreement which is detrimental to the legitimate interests of any other client.'" Defense counsel may not ethically advise a client against rejecting a plea offer because of the effect it vy^ould have on a codefendant,' but. there inay be situatipns where,the effept on a codefendant is a, legitimate concern.for jjhe accused;, e.g.^ where there is a spousal, parental, or sibling "relationship with the co-defendant. In those situatipris,'the ^defense counsel and the defendant may properly consider the effect on others, ifthe defendant is fully informed. All this is discussed in the chapter on multiple representation." 15:10 The client who maintains innocence, r,,-i; 'There is a defense lawyer's paradox in ple^ discussions on behalf of the client who maintains his or her innocence. Clients who maintain their innocence should go to trial and should, not be permitted to plead guilty. Sometimes, however, plea offers may be made or obtained which cannot rationally be refused.: ', Observation: Clients who insist on their innocence some-, -' times do, npt,have a good grasp of reality or they cannot admit,to family and friends that they are, in fact, guilty. Thus, defense ; counsel should still engage in plea discussions. Even clients Caution: The situations in which it would not be ineffective assis-..; tance, however, would seldom appear., :,". 1 /, "Cooks V. U.S,, 461 ',2d 530 (5th Cir. 1972) (defense, counsel advised client that punishment.range was six times greater than it was),.»,, ;"Hill V, Lockhart, 474 U.S, 52, 106 S. Ct; 366,^88 L.'Ed. 2d 203 (1985); Poodyv. U.S.,.469 F.2d.705 (8th Cir, 1972)., ',, '..J'See '10:27-^10:28,. ',, ' ' ', ', -'"Krahnv, Kinney,'43 Ohio St; 3d 103, 538 N.E.2d 1058 (1989); Hufferv. Cicero, 107 Ohio App. 3d 65, 667 N,E.2d 1031 (4th Dist. Highland County 1995).' : ', [Section 15:9] ' / 'See Ch 13 (conflicts of interest generally) & Ch 14 (multiple representation (;onflicts specifically), 'ABA Stds., The Defense Function, Std (c). People V. Dell, 60 A.D.2d 18, 400 N.Y.S.2d 236 (4th Dep't 1977). 'Alvarez v. Wainwright, 522 P.2d 100 (5th Cir. 1975). "See Ch who protest plead to som( It is constitut there is afactu actual guilt wh( or. courts, howe asserts his or hi Depending on nal defense ^att possible plea e^ nocehce if a rea There is, howev neg6tia:te a plea Caution: tiously with 1 ful of defens say they are 15:11 Advis infori The U.S. Sen reduced sente practice, even [Section 15:10] - North Carolir (1970); U.S. V. Gas Comment: Manual,,9-27 Compare U.S. where defendant s "^North Carolini Our holding doe valid guilty plea m does not have an, cepted by the com though the States States may bar th( sert their innocenc "refuse to accept a, discretion. 'See, e.g., U.S. (counsel not ineffe to anything). [Section 15:11] isee U.S,S.G. { 'See U.S.S.G. {

14 u. RESPONSIBILITY tiate a plea." accepted by the ^g'.... ;,. avorable to one ) the legitimate ay not ethically use of the effect y be situatipns concern for the or sibliifg rela- )ns, the defens,e er the effect on representation.'* discussions ph locence. Ciiehts and should not ver, plea offers ' be refused; ;, ocence some-,, cannot adrnit Thus, defense ' Even clients leffective assis-:: ' ansel advised client Ed. 2d 203,(1985); i8 (1989); Huff'er-v..Highland County tiple representation l't 1977), ETHICAL' DUTIES IN PLEA DISCUSSIONS 15:11 who protest their innocence often can admit.enough facts to. plead to something they can live with by a nolo or Mford plea. It is constitutionally permissible for a defendant to admit that there is a factual basis for a finding of guilt without admitting actual guilt when there is strong evidence of guilt.' Some states or. courts, however, may prohibit AZ/b/'d pleas when the accused asserts his or her innocence.' :> Depending on the jurisdiction and local practice, then, a criminal defense.^attorney may feel, obligated to seek to, negotiate a possible plea even when the defendant insists on his or her innocence if a real benefit for the client could possibly be obta:ined. There is, however, no ethical or constitutional duty on counsel to negotiate a plea for the client who insists on his or her innocence.' Caution:, Defense counsel must approach the ;client,cautiously with such plea offers. Most clients will bqcome distrust-. ful of defense counsel trjdng to plead them guilty, when they say they are innocent. :,,, 15:11 Advising whether to cooperate or become informants.;--', The U.S. Sentencing Guidelines encourage plea agreements for reduced sentences,' and cooperation against others.' State practice, even without formal guidelines, can work much the [Section 15:10]. 'North Carolina V. Alford, 400 U.S. 25, 91 S.' Ct'. 160, 27 L. Ed. 2d 162 (1970); U.S. V. Gasldns, 485 P.2d 1046 (D.C. Cir. 1973),,, Comment: This is thus known as an "Alford plea." U.S. Attorney's Mariual, , wvsrw.usdoj.gov in 1:12. Compare U.S. v. Biscoe, 518 F.2d 95 (1st Cir. 1975) (not error to reject plea where defendant said he was not guilty and case was not strong). ''^North Carolina V. Alford, AOQV.B; aimn.il: "* ' ' Our holding does not mean that a trial judge must accept every constitutionally ' valid guilty plea merely because a defendant wishes so to plead. A criminal defendant does not have an,absolute right under the-constitution to have his,guilty plea ac- v. cepted by the court, see Lynch v. Overholser, 369 U.S. at 719 (by implication), although the States may by statute or otherwise confer such a right. Likewise, the States may bar their courts from accepting guilty pleas from any defendants who assert their innocence. Fed. Rule Crim. Proc. 11, which gives a trial judge discretion to ''refuse to accept a plea of guilty....." We need not now. delineate the scope of that ^, discretion.,,.....'see, e.g., U.S. exrel.,'tiiimafi v,'alldredge, 350 F. feupp. 189 (E.D. Pai 1972) (counselnot ineffective where client said he was innocent and would not plead to an3d;hing). [Section 15:11] t 'See, U.S.S.G.,3E1.1 on acceptance of responsibility. 'See U.S.S.G. 5K1.1; Fed. R. Crim, P

15 15:11 PROFESSIONAL RESPONSIBILITY same way.., Lawyers have been found ineffective for not advising the client ofhis or her ability to cooperate to reduce the sentence.' Malpractice actions have been filed against criminal defense lawyers who allegedly refused to seek immunity or cooperate with the government resulting in the client's indictment with later cooperation." 15:12 The Moral Conuiidruni of Representing the Rat' Many defense lawyers are morally and ethically, opposed to representing informers in arranging cooperation agreements which allow clients to avoid responsibility for their own crimes by putting others in prison. Some lawyers who also are committed to defending those accused of crimes do not share this aversion. These views illustrate the wide range of perspectives among defense attorneys who share the comttlon goals of zealously representing clients and preserving integrity in our criminal Observation: Sometimes, the only cooperation is an agreement to testify so the U.S. Attorney can use that agreement to induce codefendaiits to plead guilty.- If the codefendant does not plead, however, the cooperation can require the defendant to become an iriformant agreeing to testify for a reduced sentence.. 'U.S. V. Fernandez, 2000 WL (S.D. N.Y. 2000), opinion adhered to on reconsideration, 2000 WL (S.D. N.Y. 2000) ("The advent ofthe Sentencing Guidelines now makes it mandatory that every defendant be advised at an early stage that cooperation with the Governfnent may be the only course that can substantially reduce the sentence that will ultimately be imposed." (court recognizes no prior cases so hold.) - U.S. V. Duran-Benitez, 110 P. Supp. 2d 133 (E.D. N.Y. 2000) (defendant sentenced as if he cooperated). U.S. V. Robertson, 29 F. Supp. 2d 567, 571 (D. Minn. 1998) (failure to advise of government's offer of cooperation agreement was ineffective assistance of counsel). "Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1996) (Wt no claim where plaintiff did not allege innocence); McGrogan v. Till, 327 N.J. Super. 595, 744 A.2d 255 (App. Div, 2000), afpd as modified, 167 N,J. 414, 771 A.2d 1187 (2001) (same). [Section 15:12] ^This is a reprint of Barry Tarlow, The Moral Conundrum of Representing the Rat, 29 Champion 15 (Aug. 1995), copyright 1995, the National Association of Criminal Defense Lawyers. This article is reprinted with permission of NACDL. The footnote numbering in this section does not match the article because of added notes. Tarlow's views are the lead discussion in Margareth Etienne, The Ethics of Cause Lawyering: An Empirical Examination of Criminal Defense Lawyers as Cause Lawyers, 111. Pub. L & Legal Theory Research Paper Series No (2005), ETHICAL DUTIES justice system. Some lawyei with snitches, obligation to ex ing to partic arrangements, which they saj and not to ma: often represen that the Fedei minimum sent( tions other th defendants will consciences in < Regardless o: sional policies i port a lawyer's ing to become defense lawye: tantamount to in informer act to alternative j compasses the the right to n conscience. A "no snitchbest interests j representation agrees to discui tion, and to inf and (c) the pari yond preliihin deal, the lawy handle the fina Strategically lawyer to be a be perceived bj tactics necessai lawyer at a dig and the lawyer tion with prosei sues surroundh dictate that a s 'U.S. V. Bernal-

16 AL RESPONSIBILITY [vising the client ntence.' criminal defense ity or cooperate indictment with iting the Rat' cally, opposed to :ion agreements dr own crimes by 0 are committed re this aversion. 3pectives among als of zealously in our crirhinal m agreement to nent to induce iocs not plead, t to become an pinion adhered to on Ivent of the Sentencant be advised at an the only course that ' be imposed." (cou!rt.y. 2000) (defendant in. 1998) (failure to ineffective assistance (but no claim where N.J. Super. 595, A.2d 1187 (2001) rum of Representing National Association with permission of ot match the article tienne. The Ethics of Defense Lawyers as per Series No ETHICAL DUTIES IN PLEA DISCUSSIONS 15:12 justice system.. Some lawyers have a firm policy against becoming involved with snitches. They believe that they have both the right and obligation to exercise their independent moral judgment by refusing to participate in the "dirty business'" of informer arrangements. Other lawyers claim that this is an elitist position which they say is available only to successful retained counsel, and not to many private practitioners or public defenders who often represent those most in need. These attorneys point out that the Federal Sentencing Guidelines and harsh mandatory minimum sentences leave many defendants with no realistic options other than cooperation. A number fear that classes of defendants will go unrepresented if lawyers are guided by their consciences in deciding whom they will and will not represent. Regardless of their individual personal moral views or professional policies about informers, all defense attorneys should support a lawyer's right to exercise independent judgment by refusing to become involved in, cooperation activities. Recognizing a defense lawyer's, right to refuse to represent snitches is not tantamount to claiming the refusal (or willingness) to participate in informer activities is a morally superior (or inferior) position to alternative philosophical beliefs. Rather, this view inerely encompasses the assertion that lawyers should not be deprived of the right to make decisions based on matters of individual conscience. A "no snitch" policy is consistent with protecting the client's best interests provided that: (a) the client knowingly consents to representation circumscribed by ethical views, (b) the lawyer agrees to discuss and advise the client about any cooperation option, and to inform the client of any offers involving cooperation, and (c) the parties agree that once cooperation has proceeded beyond preliminary discussions, if the client decides to pursue a deal, the lawyer will help the client find another attorney to handle the final negotiations. Strategically it often may be in a client's best interests for the lawyer to be a vigorous and aggressive defender, rather than to be perceived by prosecutors as interested in currying favor. The tactics necessary for the vigorous defense of a client may put the lawyer at a disadvantage if the client later wants to cooperate and the lawyer then needs to develop a friendly negotiating position with prosecutors. Therefore, wholly apart from the moral issues surrounding informer activities, effective strategy alone may dictate that a second lawyer should conduct informer negotiations. 'U.S. V. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). 643

17 15:12 PROFESSIONAL RESPONSIBILITY Defense Lawyers' Right to Exercise Independent Moral Judgment, Refusing to represent active informers on moral grotinds is consistent with a firm commitment to the defense of those accused of crimes, the protection of individual rights' and liberties, and promotion' of the highest traditions of criminal defense advocacy. Leading authorities support the position that a lawyer may refuse'to participate in informer activities under appropriate circumstances. In his treatise, Professional Responsibility ofthe Criminal Lawyer,' prominent ethics authority John Wesley Hall, Jr., recognizes that "some lawyers maintain personal moral values which may preclude them from doing some things which the client or other lawyers may think are dn the client's interest.... Many criminal lawyers absolutely refuse to represent 'snitches' or 'rollovers' as a matter of personal moral code." The position that attorneys should not follow their moral dictates about informer activities undermines ethical lawyering and threatens fundamental principles underlying our judicial system. In an era where lawyers are continuously attacked as "immoral hired guns," it does a great disservice to the bar to suggest that a lawyer's conduct should not be governed by conscience and moral principles." Thus it is vitally important that all lawyers support the right of each individual attorney to exercise moral judgment and autonomy in a responsible and principled manner. Protecting a defense lawyer's refusal to participate in informer activities on moral grounds is essential to the criminal, defense bar and all concerned with the integrity of our judicial system. Informers Pollute our Judicial System Many lawyers refuse to become involved in informer activities because of an unwillingness to become a part of the havoc that informers wreak on our criminal justice system. As the Ninth Circuit Court of Appeals stated in a recent opinion, unfortunately "our judicial history is speckled with cases where informants falsely pointed the finger of guilt at suspects and defendants, creating the risk of sending innocent persons to prison.'" One pf the most disturbing aspects of a lawyer participating in a cooperation arrangement is prosecution manipulation of 'Section 3.10 at 25 (1987 & Cumm. Supp. 1992). "See Fleming Sales Co., Inc. v. Bailey, 611 P. Supp,. 507, 519, 1 Fed. R. Serv. 3d 1501 (N.D. Ill; 1985) ("when a lawyer accepts or even encourages the role of a 'hired gun' in the worst sense ^the costs to the parties and to the courts are often substantial"). ^Bernal-Obeso, 989 P.2d at 334. ETHICAL DUTIES informer testii the defense lav during the sh linan,, a promi lawyer; The ei exoneration who testified i ous crimes, an Mintz observe [informers] hai with federal a information ag time and moi sweeter.'".. This pheno] prosecution. A evolutionary) ]! an untenable j I subtle or overt j more than tes "memory impr i What ifyou bei i Although th I widespread, th ; an attorney c; \ disturbing acti attorney-client the informer's lawyer compla deal or fall on in this "dirty b of the most pei The refusal tent with' widf they help to ol that "the use ( engaged,in'cla. "By definitic They must be ( cusing the inn under suspicic 'B. Howard M 1995, at 55, 59. ^Bernal-Obeso, ^Bernal-Obeso, 644

18 [AL RESPONSIBILITY ndent Moral loral grounds is mse of those acbts and liberties, riminal defense on that a lawyer nder appropriate ponsibility of the ohn Wesley Hall, personal moral me things which in the client's r refuse to reprelal moral code." low their moral ethical lawyering 7ing our judicial usly attacked as to the bar to sugaed by conscience.t that all lawyers ;o exercise moral dncipled manner, ipate in informer criminal. defense udicial system. aformer activities of the havoc that im. As the Ninth on, unfortunately /here informants and defendants, prison.'" sr participating in manipulation of 1, 519, 1 Fed. R. Sefv. mcourages the role of and to the courts are ETHICAL DUTIES IN PLEA DISCUSSIONS 15:12 informer testimony and the troubling position in which this puts the defense lawyer. This treacherous ground was exposed recently during the shameful contrived federal case against Patrick Hallinan,, a prominent and talented San Francisco criminal defense lawyer. The entire case which finally culminated in Hallinan's exoneration was predicated upon the testimony of informers who testified in exchange for leniency regarding their own serious crimes, and the return of drug profits. As journalist Howard Mintz observed recently in The American Lawyer: "These 13 [informers] had spent thousands of hours going over their stories with federal agents, often rendering conflicting accounts. Their information against Hallinan tended to grow more sinister over time and more incriminating as the guilty ^plea deals grew sweeter.'",.,,,.-i ';.!,.j -. This phenomenon certainly is not unique to the.hallinan prosecution. An honorable defense lawyer involved in the (often evolutionary) process of developing informer testimony is put in an untenable position. 'What do you tell a client about, an ageiit's subtle or overt suggestions that testirnony as to X Will,be worth more than testimony as to Y? What do you do as the,client's "niernory improves" and the story changes to get a better! deal? WTiat ifyou become convinced that the client will commit peirjirry? Although the process of manipulating inforrner testimony is widespread, there do not appear to be any reported cases where an attorney came forward and informed the court about this disturbing activity., A snitch's lawyer probably cannot breach the attorney-client privilege and tell the defendant or target.aisout the informer's prior inconsistent statements. If the: informer's lawyer complains to the prosecutor, it will either sabotage the deal or fall on predictably deaf ears. Not wanting to participate in this "dirty business" Of manipulating testimony is peirhapsone ofthe most persuasive rationales for not representing snitches. The refusal to become involved in.informer activities is consistent with widespread mistrust of informers and the convictions they help to obtain. The Ninth Circuit even takes judicial notice that "the use of informants to investigate and prosecute persons engaged in clandestine criminal activity is fraught with peril."'. "By definition, informers are cut from untrustworthy clpth."' They must be carefully watched to "prevent them from falsely accusing the innocent, from manufacturing evidence against those under siispicion of crime, and from lying under oath in ;the 'B. Howard Mintz, "Port Reno's Obsession," The American Lawyer, May 1995, at 5,5, 59,, ''Bernal-Obeso, 989 P.2d at 333. ^Bernal-Obeso, 989 P.2d at

19 15:12 PROFESSIONAL RESPONSIBILITY courtroom.'' Some will "stop at nothing to maneuver themselves into a position where they have something to sell."" Prosecutors are often equally revolted by informers." Indeed, the despicable manner in which many informers conduct themselves demonstrates why many defense lawyers are unwilling to become involved in this tjrpe of activity. The pervasive corruption of the criminal justice system through the use of informers is well documented. Informers undermine our judicial system, and often lead to the tragic imprisonment of the innocent." It is an unfortunate truism that informers are rarely if ever- inotivated by the search for truth and justice which is the cornerstone of our judicial system. Rather, they finger others to get on flush government payrolls and save their own necks by putting Others in jail to serve their tirne. As (now) Ninth Cii-cuit Judge StephfehTrott has observed, these rats are "likely to say and do almost anything to get ;.. out Of trouble... including...lying^'committing perjury, manufacturing evidence, solicitin.g others to corroborate their lies with more lies.... Many are,outrigh.t conscienceless gociopaths to whom 'truth' is a wholly meaningless concept."" ;^SemciZ-06eso, 989 P,2d at 333.' ^"Berndi-Obeso, 989 P.2d at 334; see Dannie M, Martin, "Just Say No to Informer Testimony," New York Times, April 17, 1993, at 15 (DEA informer says "he and other DEA snitches under the tutelage of cynical agents lied, cheated and:did \yhatever was necessary to make the cases and the rewards"). ' 'See Assoc. Attorney General Stephen Trott; Successful Use of Informants as Witnesses for the Prosecution in a Criminal Case (concluding that informants are iiiherently incredible, dishonest, and widely despised and mistrusted), printed in United States Department of Justice, Prosecution of Public Corruption Cases, at (February 1988), : "See, e,g., Bedau & Radelet, Miscarriages Of Justice In Potentially Capital Cases, 40 Stan, L. Rev. 21, (1987).(documenting 117 cases of innocents convicted as a result ofpeijury by prosecution witnesses including capital cases in which informers lied in court to obtain leniency for their crimes); Report of the 1989/90 Lbs Angeles Grand, Jury (June 26, 1990) (investigation finding widespread perjury by informers which was initiated following revelations by Leslie Vernon 'White, a frequent witness for prosecutors who is now in prison for.perjury, which led to reinvestigation of over one hundred felony cases in Los Angeles Courity involving alleged jailhouse confessions); 60.Minutes: The Informers (CBS television broadcast. Mar. 28, 1993) (chronicling "horrifying mistakes in which innocents paid dearly" as a consequence of governmental reliance on false informer information and governmental agents' frequent substitution of a "dubious man's word for good old fashioned police work."). "U.S. Dept. of Justice, Prosecution Of Public Corruption Cases, supra, at ETHICAL DUTIES I: Dramas Cast i Recently,' the tors against Ps testimony wher all charges folic began back in 1 rolling sometim Hallinan. The h gling organizati enforcement eff sentence if com wife and sister, operation. The Mancuso's potei Not sufficieni Mancuso's relat tors turned thei prosecutor Tonj three years re-c linan as a proi charged with 2( for virtually ev Mancuso's operi The baseless prosecutors wit cadre of other recruited. Mane Alfieri. Alfieri ^ who announced in tow as her m under which ME and/or conscri] becoming the pi ers eventually centered on all( ing and paymer ' Assistant Un: sordid mess by representation: Mancuso enterj grand jury invi furtherance ofi legations are i lawyers in the Call Cartel. Pe charge in the in 646

20 T STAL RESPONSIBILITY euver themselves ell."'" Prosecutors id, the despicable emselves demonilling to become ;e system through rmers undermine ; imprisonment of J rarely ^if ever ice which is the y finger others to eir own necks by ow) Ninth Circuit are "likely to say ble... including : evidence, solicites.... Many are ;ruth' is a wholly rtin, "Just Say No to at 15 (DEA Informer if cynical agents lied, 3s and the rewards"), ful Use of Informants luding that informants.sed and mistrusted), tion of Public Cbrrup- In Potentially Capital 117 cases of innocents including capital cases leir crimes); Report of (investigation finding Uowing revelations by who is now in prison red felony cases in Los ns); 60 Minutes: The hronicling "horrifying lence of governmental mtal agents' frequent ned police work."), ption Cases, supra, at ETHICAL DUTIES IN PLEA DISCUSSIONS 15:12 Dramas Cast in Hell^Snitches Take Center Stage ' Recently, the four-year-lpng battle waged by federal prosecutors against Patrick Hallinan sank in a cesspoplof inforrner testimony when a jury took just four hours to clear Hallinan of all charges following a six-week trial. The, run-amok prosecution began back in 1989 with the indictment of Ciro Mancuso, a highrolling sometime developer from Lake Tahoe and (then) client of Hallinan. The indictment involved a worldwide marijuana smugr gling organization, and capped almost two decades,pf federal law enforcement efforts to nail Mancuso. Faced with a probable life sentence if convicted, and the prosecutors' threats to indict his wife and sister, Mancuso pled guilty,to running this smuggling operation. The plea agreement, negotiated by Hallinan, set Mancuso's potential sentence at ten years'to life.., ;,, Not sufficiently satisfied by this conviction,y and aware that Mancuso's relationship with his lawyer had deteriorated, prosecutors turned their sights to a new target: Patrick Hallinan. Federal prosecutor Tony 'White, a notorious loose cannon, spent the next three years re-configuring the Mancuso drug.ring to feature Hallinan as a prominent,,co-conspirator. Hallinan eventually- was charged with 20 counts which pinned vicarious liability on him for virtually every, known venture carried out in the ;course of Mancuso's operations.,.,,,0 The baseless case against Patrick Hallinan was crafted by prosecutors with the enthusiastic assistance of Mancuso and a cadre of other informers that he and; his federal handlers recruited. Mancuso was represented by hall-of-shamer Katherine Alfieri. Alfieri was an associate in Patrick Hallinan's law firm who announced one day that she was leaving with Ciro Mancuso in tow as her major client.. She promptly struck a flush new deal under which Mancuso would testify against Hallinan and ensnare and/or conscript some 13 former Mancuso confederates into becoming the prosecutors' bedfellows. At trial this team of informers eventually.'generated a rancid cloud of testimony that centered on allegations of obstruction of justice, money, launder,- ing and payments of large legal fees.,, '! (,. > ' Assistant United States Attorney (AUSA) 'White added to this sordid mess by claiming that much of Patrick Hallinan's legal representation was intended to further the illegal aims of the Mancuso enterprise. The indictment alleged that monitoring: the grand jury investigation and accepting cash fees were acts in furtherance of the broad conspiracy.. Many of these baseless allegations are similar to the charges leveled against Miami lawyers in the recent indictment involving the activities of the Call Cartel. Perhaps White's most bizarre allegation was the charge in the indictment that Patrick Hallinan obstructed justice 647

21 15:12 PROFESSIONAL RESPONSIBILITY by arguing Mancuso's innocence at a bail hearing. The ephemeral connection between Hallinan and any of the informers' claims was evident from the inception. United States District Judge Howard McKibben, a Reagan appointee, was unimpressed, calling White's conspiracy theory, which was based on Pinkerton liability for the marijuana smiigglihg violations, "amorphous at best." The informers' bartered testimony was riddled with inconsistencies. They withered under blistering cross-examination by veteran San Francisco defense lawyer and former Oliver North Special PrOsecutorj John Keker, who spearheaded Hallinan's defense. Judge McKibben became increasingly agitated with the prosecutors; He repeatedly admonished White and his cohorts, and when he became angry his face would turn crimson as he stalked off the bench. At one bench conference Judge McKibben snapped at Mancuso loud enough for everyone in the > courtroom to hear, "I find your testimony incredible."'at the conclusion ofthe prosecution's "case," the judge dismissed the RICO charges and axed a number of the obstruction of justice counts. Prosecutor White had attempted in opening statements to prepare jurors for the sordid cast of characters on which his case depended, by rel5dng on the familiar bromide that"when the play is cast in hell... don't expect angels for actors." He was unsuccessful. As Howard Mintz succinctly observed: "The parade of informants never overcame the perception that they had come to court in search ofa reward, bounty hunters who cut dirty deals with Fort Reno for reduced sentences and returned drug profits.'"" Fortunately the jury saw the light and speedily returned a verdict exonerating Hallinan. Unfortunately a great injustice already had been done by the prosecutors' abuse ofthe informer system. As a result ofthe indictment, Patrick Hallinan was forced to dissolve his extraordinarily successful law practice, and incurred nearly half a million dollars in expenses while defending himself. Hallinan's anticipated defamation and malicious prosecution suit against Mancuso undoubtedly will succeed. Nothing, however, could adequately Compensate for the emotional toll exacted on Patrick Hallinan, his family and friends. The direct costs of many years of groundless investigation and the lengthy prosecution, and the hefty sums paid by prosecutors to Mancuso and others, add to the staggering cost of this renegade prosecution. The unraveled RICO megatrial of members of the notorious Chicago street gang, "El Rukn,'' is another recent showcase of '"Mintz, Fort Reno's Obsession, supra, at 59. ETHICAL DUTIES II sordid prosecut Seventh Circuit judges' new tri among other thi ply of drugs, ale custody informe withheld this cr Attila the Hun Another reas' averse to the in head the funds proportionate tl criminals. Textb ing "with the li Increasingly, ho chain" in their seemingly at a Panamanian str thetic, example. In the NoriegE with over a doz' sentences, allow them and/or th( witness protect! The word circul that anyone whc would receive a ally included si founder Carlos Noriega to allovv United States. The sweethea prosecutors proi by various hieml acknowledged tl "See U.S. V. Anc 824 P. Supp ), aff'd, 55 P,3' prosecution's use of ful privileges provi( rial Misconduct Tl (1993). "See Bob Cohn < The Price That Is P "See Newsweek 648

22 r vtal RESPONSIBILITY a and any of the )n. United States L appointeie, was which was based jgling violations, d testimony was under blistering fense lawyer and ohn Keker, who ikibben became, He repeatedly he became angry ;he bench. At one at Mancuso loud iar, "I find your :he prosecution's id axed a number ig statements to on which his case at "when the play actors." He was rved: "The parade lat they had come!rs who cut dirty ad returned drug iedily returned a great injustice ah e of the informer allinan was forced iw practice, and ses while defendon and malicious nil succeed. Noththe emotional toll dends. The direct 1 and the lengthy ;utors to Mancuso )f this renegade! of the notorious jcent showcase of ETHICAL DUTIES IN PLEA DISCUSSIONS 15:12 sordid prosecutorial exploitation of the informer system.,the Seventh Circuit Court of Appeals affirmed various district court judges' new trial orders based on post-trial revelations that, among other things, prosecutors supplied or facilitated the supply of drugs, alcohol, money, sex, and other illegal benefits to incustody informers in return for their vital testimony and then withheld this crucial impeachment evidence from the defense.'^ Attila the Hun Rats On Petty Thief Gets Big Reward 'Another reason that many defense lawyers and others are averse to the informer system is that it frequently turns on its head the fundamental principle that punishment should be proportionate to culpability, and handsomely rewards serious criminals. Textbook informer deals involve prosecutors negotiating "with the little fish in an effort to reel in the big ones."" Increasingly, however, prosecutors have been reversing the "food chain" in their excessive zeal to net high-profile defendants seemingly at any cost. The prosecution of despised former Panamanian strongman Manuel Noriega is a glaring, if unsympathetic, example. In the Noriega case, Miami federal prosecutors negotiated deals with over a dozen drug traffickers, giving them greatly reduced sentences, allowing them to retain large drug profits, and slotting them and/or their families (and in one case a maid) in federal witness protection programs paid for with American tax dollars. The word circulated quickly through the federal prison system that anyone who could supply information about General Noriega would receive a "get out of jail free card." These snitches eventually included such renowned kingpins as Mendellin cartel cofounder Carlos Lehder, who claimed that his associates paid Noriega to allow drug pilots to stop off in Panama en route to the United States. The sweetheart deals given to scores of major drug dealers by prosecutors prompted a Senate investigation and condemnation by various members of Congress." A Senate Subcommittee report acknowledged that "the charges against General Noriega are not "See U.S, V. Andrews, 824 P. Supp (N.D. Ill, 1993); U,S. v. Bumside, 824 P. Supp (N.D, ); U.S. v, Boyd, 874 P. Supp. 179 (N.D. Ill, 1994), aff'd, 55 P.3d 239 (7th Cir; 1995) (affirming new trial orders based on prosecution's use of testimony it knew to be false and failure to disclose unlawful privileges provided to informers by prosecutors); Barry Tarlow, "Prosecutorial Misconduct The Supervisory Power To Dismiss," 20 CACJ Forum 18, 20 (1993). "See Bob Cohn & Spencer Reiss, "Noriega: How The Feds Got Their Man The Price That Is Paid Por A Guilty Verdict," Newsweek, Apr. 20, 1992, at 37. "See Newsweek, Apr, 20, 1992, at 37 (Democratic Sen, Dennis DeConcini 649

23 15:12 PROFESSIONAL RESPONSIBILITY to be minimized," but expressed outrage at the "unprecedented costs prosecutors incurred in cutting deals with scores of convicted drug traffickers and other felons" whose crimes "which... have been excused are worse than those for which General Noriega stands trial."" i The Hallinan case reflects a similar phenomenon; Ciro Mancuso was granted bail soon after he agreed to join the prosecution team. Although he was indicted and.arrested in 1989 under his cooperation arrangement, Mancuso remains a free man today. He awaited sentencing ensconced in his million-dollar home complete with an indoor swimming pool, in the plush Squaw Valley ski resort. This lavish lifestyle is financed with drug money returned as part ofthe deal. Prosecutors even aissisted Mancuso in obtaining the release of $900,000 frozen in a Swiss bank account, and in 1992 permitted him to dig up and keep $2,000,000 in cash buried at his father's ranch. Often major players in a criminal scheme get relative handslap sentences because they are uniquely situated to serve up others. Unfortunately bit players who have nothing to trade suffer the full force ofthe law. The Seventh Circuit Court of Appeals described this troubling disparity: :,: Drones of the organization the runners, mules, drivers, and lookouts have nothing...to offer. They lack the contacts and, trust necessary to set up big deals, and they know little information of value. 'Whatever tales they have to tell, their bosses will.have related. Defendants unlucky enough to be innocent have no information at all.... The more serious the defendant's crimes, the lower the sentence ^because the greater his wrongs, the more infomiation and assistance he has to offer to a prosecutor.' This phenomenon can be observed on Wall Street as well as Mulberry Street: in the Michael Milken insider trading, case^ Drexel Burnham Lambert clerk Lisa Jones received a stiff 18T month jail sentence (for obstructing prosecutors'investigation, by providing false information to a grand jury). By contrast, insider trading mogul Ivan Boesky, who snitched on junk.bond king JVlichael Milken, netted a term that was only about double Jones' sentence." In light of the widespread corruption and distortion of bur says that it is a "'disgrace' that Lehder's lifetime sentence was sacrificed for Noriega."); Rep. Charles Schumer (D. N.Y.), House Judiciary Committee, Subcommittee on Crime and Criminal Justice, Staff Report, The Noriega Prosecution: What Price the General? (April 1992) (documenting sweet informer deals given to "Felonious Fifteen" in Noriega prosecution). "Id. atl ' ; '^U.S. V. Brigham, 977 F.2d 317, 138 (7th Cir. 1992). "See Allan Sloan, "Why Prosecutors Need Snitches and Punish Those Who ETHICAL DUTIES II judicial system hardly surprisir sion to participa Historical Und Refusing to re cal underpinni: informers that if developed in pa: the Old Worid. In a recently Appeals compar ment to "blood over 300 years a Infamous "] Parliament ir money certific ing to the c structure was in 1754, it WE framed innoc reward and 1 executions." In Roberts v. Thurgood Mars values of loyalty from "imposing i the business of i other societies, 1 citizens who fail Our country, the During the M( others by the E practice destroy* an anomaly in i i lian Hellman WE I names," denoun Won't Sing," Los An "U,S. V. Solorio, 43 P.3d 1334 and f 1995) and for supe: lished opinion). "Roberts v. U.S. (1980) (Marshall, J., "See Victor S. Ni 650

24 [STAL RESPONSIBILITY e "unprecedented 3 with scores of )se crimes "which or which General lou; Ciro Mancuso L the prosecution n 1989 under his ee man today. He ar home complete 3quaw Valley ski g money returned [ancuso in obtainlank account, and ^,000,000 in cash ;et relative handlated to serve up hing to trade suf- : Court of Appeals lies, drivers, arid the contacts and. ow little infprmatheir bosses will innocent have no ffeftdant's crimes, vs^rongs, the more }rosecutor.'^ Street as well as der trading, case, jceived a stiff 18-3' investigatlpn, by 7 contrast, insider mk bond king WLiout double Jpnps' distortion of our nee was sacrificed for udiciary Committee, rt, The Noriega Prosenting sweet informer ad Punish Those Who ETHICAL DUTIES IN PLEA DISCUSSIONS 15:12 judicial system caused by prosecutors' reliance on snitches, it is hardly surprising that many lawyers have a strong moral aversion to participating in informer activities. Historical Underpinning of Aversion to Informing Refusing to represent informers is consistent with the historical underpinning of our judicial system. The abhorrence of informers that is enshrined in the American democratic tradition developed in part based on experience with corrupt practices in the Old World. In a recently withdrawn opinion, the Ninth Circuit CoUrt of Appeals compared a contemporary contingency informer agreement to "blood mpney certificates" paid by English authorities over 300 years ago: Infamous "Reward Statutes" that were enacted by the English Parliament in 1692 promised monetary rewards so-called "blood money certificates' to those who would provide information leading to the conviction of criminals. This perverse incentive structure was sharply criticized and eventually abandoned, when in 1754, it was discovered that a group of career informants had framed innocent individuals in order to collect the monetary reward and had provided false information which led to their executions." ' ' In Roberts v. United States, late Supreme Court Justice Thurgood Marshall observed that the traditionally American values of loyalty and personal privacy have'preventedoiir society from "imposing on the citizenry at large a general duty to join in the business of crime detection." As Justice Marshall stated: "In other societies, law-abiding behavior is encouraged by penalizing citizens who fail to spy on their neighbors or report infractions. Our country, thankfully, has never chosen that path."" During the McCarthy era, citizens were compelled to inform on others by the House Un-American Activities Committee. This practice destroyed many lives and has been widely condemned as an anomaly in American political history." The playwright Lillian Hellman was one of the few witnesses who refused to "name names," denouncing the use of citizen informants as "inhuman. Won't Sing," Los Angeles Times, June 14, "U.S. V. Solorio, 37 P.3d 454 (9th Cir. 1994), withdrawn.at request of court 43 P.3d 1334 and for opinion staying pubucation, see, 43 F;3d 1334(Jan. 17, 1995) and for superseding opinion, see, 53 P.3d 341 (Apr. 26, 1995) (unpublished opinion). "Roberts v, U,S,, 445 U,S. 552, , 100 S. Ct. 1358, 63 L. Ed. 2d 6^2 (1980) (Marshall, J., dissenting). "See Victor S. Navasky, Naming Names (1990). 651

25 15:12 PROFESSIONAL RESPONSIBILITY ETHICAL DUTIES IN \ indecent and dishonorable."'" Zero Mostel, a victim of informers during the red scare and a Rabbi's son, once explained that he could never become an informer because then he could never be buried in sacred ground." Disdain for informer activities has religious roots pre-dating the development of our judicial system. The Book of Leviticus 19:16 commands "thou shalt not go up and down as a tale bearer among the people." The Book of Daniel teaches that an informant is "one who eats the flesh of another." Under Jewish law, penalties for being an informer included flogging, imprisonment, branding and death and orthodox Jews condemn the informer thrice daily in their prayers." In Christianity, the informer is personified by Judas, who betrayed Jesus for 30 pieces of silver, repented '"L. Hellman, Scoundrel Time 93 (1976). "See David Lewis, "Cooperation: The Value of Society's Suspect Value," The Champion (December 1990) at 30, "N.B: I asked Mr. Tarlow for his source on this, and he cited none other than the venerable Senior Judge Jack B. Weinstein of the Eastern District of New York in an article Tarlow had read but could not locate. I traced the article myself, having to get direction of Judge Weinstein's office, since he could not remember the exact place it was printed, and it was finally located and shipped on an interlibrary loan; Jack B, Weinstein, The Informer; Hero or Villain? Ethical and Legal Problems, N,Y.L.J, pg. 1, 3-4 (Nov. 8, 1982). See pg. 4, col. 1; So dangerous was the informer to the Jewish community from the period after the destruction of the Second Temple to modern times a danger present today in places like Russia, Iran, Syria, and others hostue to Jews that death, mutilation, excommunication and banishment were among the punishments meted out to these turncoats. In a number of instances punishments forbidden by the Talmud were visited upon informers. Moreover, many of the customary procedural protections against conviction of the innocent were reduced where an alleged informer was involved. Because of the possible disaster to the entire community, the general view of Maimonides and others that many guilty should be freed lest one innocent be falsely convicted did not apply with the same strength where a person was suspected of being an informer, [citing in a footnote 8 Encyclopedia Judaica, Informers, (1971)]. Other sources located on the Internet include, e.g.. Rabbi Michael J. Broyde, Informing on Others for Violating American Law: A Jewish Law View, Even though Jewish law expects people to observe the law of the land, and even imposes that obligation as a religious duty, the Talmud recounts ^in a number of places that it is prohibited to inform on Jews to the secular govemment, even when their conduct is a violation of secular law and even when their conduct is a violation of Jewish law. While there are a number of exceptions to this prohibition (which are explained further in this section), the essential halacha was that Jewish law prohibits such informing absent specific circumstances. Even if secular government were to incorporate substantive Jewish law into secular law and pimish violations of what is, in effect, Jewish law, Jews would still be prohibited from cooperating with such a system. Indeed, classical Jewish law treats a person who repeatedly informs on others as a pursuer (a rodef) who may be killed to prevent him from informing, even without a formal court ruling, (footnotes omitted). See also Stephen P. Priedell, "The Maharam of Lublin and the Maharshakh on the Tort Liability of the Informer," in Studies in Jewish Law (A. Enker and S. Deutch, eds.) (1998) (in Hebrew). and hanged hims [ refusing to rep \ ingrained in thi \ system. : «No Snitch" Po I Attorneys' rul I being compelled \ repugnant. In k( \ lawyering. Rule I ("ABA"): Model B I lows a lawyer to \ insists on purs \ repugnant or im to make an inde] ; in activities that i Compelling d( ; activities would ; countability, ani ; person."" This! criticized as a "] ; excuse for mora \ the institutional I If lawyers alb i personal assess) \ proceeding, wi.thi ; principled decisi i a severe impove: i kind of moral pi his own moralf< personality as a Divorcing law; ethical judgme: lawyer."": "Lav^^y sistin the pursi.."matthew 26:15, Informant," 1 Drug Value of Society's Si "See Kenneth L; Rev, 307, (l! '^Id, at , "Gerald J. Post N,Y.U.L. Rev. 63,11 '^Thomas L. Sha: 319, 330 (1986). ^ 652

26 inal RESPONSIBILITY Lctim of informers explained that he he could never be 3 roots pre-dating Book of Leviticus 'n as a tale bearer that an informant fewish la\y, penal- (risonment, brandle informer thrice former is personiof silver, repented 's Suspect Value," The! cited none other than istern District of New e. I traced the article ce, since he could not ly located and shipped er; Hero or Villain? 1982). See pg. 4, col. 1; om the period after the present today in places ith, mutilation, excom- ;s meted out to these 1 by the Talmud were jainst con-viction of the ed. Because of the postlaimonides and others con-victed did not apply ; an informer, [citing in ibbi Michael J. Broyde, A Jewish Law View, r of the land, and even ounts ;in a number of government, even when ir conduct is a violation I prohibition (which are at Je-wish law prohibits ar government were to ah violations of what is, Doperating with such a eatedly informs on othn from informing, even n and the Maharshakh ish Law (A. Enker and ETHICAL DUTIES IN PLEA DISCUSSIONS 15:12 and hanged himself." Viewed in historical context, itis clear that refusing to represent informers is a moral position firmly ingrained in the earliest development of our criminal justice system., '.:' : '-, "No Snitch" Policies are Consistent with Ethical Canons Attorneys' rules of professional conduct protect lawyers from being compelled to pursiie objectives that they'consider morally repugnant. In keeping with well-established principles of ethical lawyering, Rule 1.16(b)(4) of the Araerican Bar Association ("ABA") Model Riiles of Professional Conduct ("Model Rules") allows a lawyer to seek to withdraw from representing a client who insists on pursuing "an objective that the lawyer considers repugnant or imprudent." Lawyers have both the right and duty to make an independent riioral judgment to decline to participate in activities that the lawyer believes are repugnant or imprudent. Compelling defense lawyers to become involved in informer activities would strip lawyers of personal responsibility and accountability, and remove "the lawyer's autonomy as a moral person."" This approach to lawyering has been trenchantly criticized as a "principle of honaccountability," an "institutional excuse for rnpral ruthlessness," and as prprnoting "amorality of the institutional role of the lawyer.'"^,,,,. i., If lawyers allow their actions to become separated from any personal assessment of their own beliefs and values, they are proceeding, withput guidance from an ethical compass by which principled decisipns can be made. Such npnaccountability "jdelds a severe impoverishment of moral experience" that results in "a kind of moral prostitution" in which counsel is "alienated from his own moral feelings and attitudes and indeed from his moral personality as a whole.'"'" Divorcing lawyering frorn the lawyer's personal principles and ethical judgments "removes the.essential character of the lawyer.""; "Lawyers should have ethical discretion to refuse to as.- sist in the pursuit of legally permissible courses of action....."matthew 26:15, 27:3-5. See Alan Silber, "Resisting Pressures to Become an Informant," 1 Drug Law Report 109 (19S4); David Lewis, "Cooperation: The Value of Society's Suspect Value," supra, at 29; '"See Kenneth L. Penegar, The Five Pillars of Professionalism, 49 U. Pitt. L. Rev. 307, (1988). - M'- :vr- \ ^/.' '«Id. at "Gerald J. Postema, Moral Responsibility and Professional Ethics, 55 N.Y.U.L.Rev. 63, 78-79(1980). - : '. '^Thomas L. Shaff'er, Legal Ethics and the Good Client, 36 Cath. U, L. Rev, 319,330(1986), ' 653

27 15:12 PROFESSIONAL RESPONSIBILITY ETHICAL DUTIES II ; This discretion involves not a personal privilege of arbitrary decision, but a professional duty of reflective judgment."" The view that lawyers should be compelled to represent snitches threatens these fundamental principles by disregarding the importance of a lawyer's own moral code, and by suggesting that counsel even when protecting the client's interests may not exercise ethical discretion. A defense lawyer's refusal to assist prosecutors in promoting the informer system is consistent with lawyers' ethical canons, and federal and state laws which prevent attorneys, generally from buying lay witness testimony. For example, DR 7-109(0) of the ABA Model Code of Professional Responsibility, provides; A lawyer shall not pay, offer to pay, or acquiesce, in the payment of compensation to a witness contingent upon the content of his testimony or the outcome of the case. ABA Model Code Ethical Consideration 7-28 states: ' ' Witnesses should always testify truthfully and should be free from any financial inducements that might tempt them to do otherwise. A lawyer should not pay or agree to pay a, non-expert witness an amount in excess of reirnbursement for expenses and -, financial loss incident to his being a witness.; Federal and state Taws cririiihalize giving inducements to witnesses in exchange for partial testimony." Prosecutors believe they have secured for themselves a de facto exemption to these ordinary rules that prevent purchasing testimbny. However, a defense lawyer should be able to refuse to help prosecutors exploit this special exemption that prosecutors claim to the ethical constraints that apply to attorneys generally. Protecting Clients' Interests- -Importance of Informed Consent A defense lawyer who is morally or otherwise opposed to becoming involved in informer arrangements must at the outset inform prospective clients of this, and ensure that clients fully understand the lawyer's position and that the clients' rights aiid options are protected and preserved. The lawyer should tell prospective clients up front that he or she does not represent active informers or clients who want to pursiie that course, and should explain the policy. For example, a. lawyer might explain that under the lawyer's policy: (a) the lawyer will discuss the client's options regarding "W.H. Simon, Ethical Discretion in Lawyering, 101 Harv. L. Rev: ^1083 (1988), -. ;:. <:.'_..,, "See, e.g., 18 U.S.C.A, 201, 1512; Cal. Penal Code 138, cooperation; (b) ; fers regarding ir? ent; (c) if the cl I become an inforj I of such negotiat s to, and will, rete I gotiatiohs to bee t personally invol t withdraw from t lawyer to pursue j; he wants to do; i negotiauons thai \ the inatter and 1 ; sential that the l the terms and sc [ An explicit a I regarding the- li [ consistent with i to limit the scoj i Rule 1.2(c), a "la J the client consei i "exclude objectiv i or imprudent" (i\ t Rule,1.2(c) has n i tationif a clien lav^ryer considers j The moral pr grounds to becon1: best interests, c and procedures. E ing, the key is responsiveness t '"Hall,.Professioi I.5.10.'....., I "Model Rule l.ie I often must refer to t course of conduct m. I Board of Profession! p reprinted in 2 AB./ l (lawyer in a capita! i; lawyer's own moral r to acquiesce in impoi P Cal. App, 3d 721, li l tion' where counsel E where defendant ins E 654

28 T' ONAL RESPONSIBILITY fe of arbitrary decipnent."" The view snitches threatens :he importance of a that counsel even lot exercise ethical iters in promoting srs' ethical canons, ttorneys generally pie, DR7:109(c)of lihty, provides; [uiesce in the payapbn the content of tates: and should be free tempt them to do 0 pay a. non-expert.t for expenses and iducements to Wit- 'rosecutors believe sxemptioh to these mbny. However, a prosecutors exploit lim to the ethical ; of Informed 3 opposed to becomit the outset inform dients fully lindernts' rights arid oper should tell prolot represent active course, and should under the lawyer's i options regarding )1 Harv. L. Rev;M ETHICAL DUTIES IN PLEA DISCUSSIONS 15:12 cooperation; (b) the lawyer will communicate any prosecution offers regarding informer activities, and discuss them with the client; (c) ifthe client at any time decides that he would like to become an informer, the lawyer will inquire about the possibility of such negotiations; (d) the client represents that he can afford to, and will, retain other counsel if he wishes to pursue final negotiations to become an informer; (e) the lawyer will riot becoriie personally involved iri final cooperation negotiations, and Will withdraw from the case so that the client can retain another lawyer to pursuie this course if that is what the client later decides he wants to do; and (f) thte lawyer will act as trial counsel if any negotiations that the client rnight decide to pursue did riot resolve the inatter and had not undermined the client's defense. It is essential that the client fuhy understand and explicitly agree with the terms and scope of the represeritation. An explicit agreement betweeii the lawyer and the client regarding the. lawyer's policy of not representing informers is consistent with a defense lawyer's right to contract with a client to limit the scope of his representation.'" As reflected in Model Rule 1.2(c), a "lawyer may limit objectives ofthe representation if the client consents after consultation." Similarly, a lawyer may "exclude objectives or means that the lawyer regards as repugnant or imprudent" (Model Rule 1.2(c) Comriient [the wording of Mo,(iel Rule.1.2(c) has now changed]),,and may withdraw from representation if a client ''insists upon pursuing an objective that the lawyer considers repugnant or imprudent."" The moral principles ofithe lawyer who refuses on ethical grounds to become, involved ininformer activities, and the client's best interests, can be fully protected if appropriate disclosures and procedures are followed. As in many other aspects of lawyering, the key is thorough: attorney-client communication arid responsiveness to'developments as a case progresses. '"Hall,: Professional Responsibility of the Criminal Lawyer (2d ed.) p;120 '5.10.'.',,....,.,-,..' ;';,;..,,,;,;,, : ^,.,, "Model Rule 1.16(b)(4); Model Rule 2.1 (expressly recognizing that a lawyer often must refer, to his or her, own moral code, especially Avhere a proposed course of conduct may have effects on other people); Tennessee Supreme Court Board of Professional Respoiisibiliiy, Formal Opinion 84-F-73 (June 13, 1984), reprinted in 2 ABA/BNA Lawyers Manual on Professional Conduct (1986) (lawyer in a capitalcase could: withdraw from penalty phase of trial, when lawyer's own moral opposition to the death penalty conflicted with client's wish to acquiesce in imposition of the.death penalty); cf. Chaleff v. Superior Court, 69 Cal. App. 3d 721, 138 Cal. Rptr. 735 (2id Dist. 19'77) (reversing contempt citation where counsel refused to represent indig'ent defendant in capital case where defendant insisted on foregoing all defenses). 655

29 15:12, PROFESSIONAL RESPONSIBILITY Evaluating the Concerns of Some Members of the Defense.Bar,,-;,:.,:-,,- ;-;.. ;, ^. : '.,.r,-;- )..,.' ' % Is'a "No'Snitch" Policy Morally Judging Our Clients? ' }v,,some, lawyers feel, that, refusing ;tp represent snitches is tantarnpunt.to sitting in "moral judgment" of their clients. This ppsitipn.misapprehends the ethical, issues at,stake. The moral,antipathy that leads many lavyyers to refuse to represent snitches i. a.strong,aversion to bpcoriiing personally involved in the distasteful activity,. Unlike a con^umriiated rnurder or rape that a client may have committed, infprriier activities generally require the defens^ lawyer tp become ihtegrally inyolyed by (a) negotiating a firial arrangement, (b) advising the clierit throughout the course of the activities, arid (c) seeking, to riiaximize the benefits to the client (which often are directly related to and contingent upon the incriminating nature ofthe testiiribny and delivering others td prosecutors). A lawyer does not pass moral "judgment" on a client by deciding that he or she the lawyer^-cannot in goodconscience become ari integral part of thei informer's ongoing ketrvities. '' / ',,',- > " ''--., ;-;,.' :,- ';., B-DoPublic!Defenders Have a Choice? :-,!'isome public defenders point but that they generally carinot decline to represent a deferidant, including an a!ctiye irifbrmer. Thfe existing policies of a p'ublie defender's office niay prevent an individual lawyer froni i-efusirig to represent a sriitch. It is questionable whether an office cari or should have a policy requiring, a lawyer to abandon personal moi?al principles. These rules should be re-examined critically by policy-makers. For example, should a Jewish public defender be required to represent; an active member of the American Nazi Party or an African American be compelled to Irepresent ari active meiriber of the Ku Klux Klan? Preeminent Arizona defense attorney Tom Karas, in addition to being a former President of the Arizona State Bar, -was the first federal defender appointed under the Criminal Justice Act, in 1971; His office continued the policy Of refusing to represent snitches that had been in place since 1965 wheri that office was established as a pilot project. While the policy has ^ince beeri cha^nged,' and thte oifice now represents infdrmers, a "no snitch" policy", V^as.'fqillowed for ovesr a decade by the office. During this time the office earned widespread recognition for its commitment to excellence in defending the accused and prprnoting fairriess iri the criminal justice system. The f^fusah Of a public, defender's pffice or individiial public deferider, to participate iii inforrner activities.does, not.necessarily mean that classes of defendants will go without counsel. For ETHICAL DUTIES I example, while Federal Public were appointed arrangements, bar regarding lawyers w;hp ro lawyer^ coiild n unfounded. C.l9Greedd% Some lawyeri represent info business. They that they will b who retain lav ensure that th( This cynical vi( defense bar, bu frequently reqt crative cases. E itable since it i necessary to vij D. Do the Guid Even attbrn( informers recoj Federal Senter Many lawyers ( era when a di sentence of twi put friends or term. The hars tory mandatory moral calculus ticipate in infoi Today lawye: to informer ac visited on theii does not justify in their work { necessary cond information to access to the v defense agreei face of profes! candor. It may 656

30 NAL RESPONSIBILITY s of the Defense Clients? isent snitches is ;heir clients. This stake. The moral represent snitches ' involved in the der or rape that a geiierally require id by (a) negotiatit throughout the imize the benefits to arid contingent ay'and delivering moral "judgment" awyer^ cannot in informer's ongoing generally cannot n active informei:. 36 may prevent an at a sriitch. It is Lve a policy requiriles. by policy-makers, be required to rep- Nazi Party or an 1 active member of nse attorney Tom snt of the Arizona pointed under the Led the policy Of re- 1 place since 1965 project. While the ;e now represerits r Over a decade by ddespread recogninding the accused system. Ldividiial public de- )es,^.not necessarily ;hout counsel. For ' ETHICAL DUTIES IN PLEA DISCUSSIONS 15:12 example, while its "no snitch" policy was in effect, the Arizona Federal Public Defender's Office ensured that panel attorneys were appointed for defendants w'ho wanted to pursue informer arrangements. Given the diversity of views among the defense bar regarding informer activities, and the large number. Of lawyers whp routinely represent infprmers, the fear that capable lawyers cbiild not be found tp reipresent indigent informers Seems unfounded! C.l9Greed a Factor?', ' " ',,'' Some lawyers (usually prosecutors) maintain that refusing to represent informers is a.machination intended to increase business. They claim that lawyers refuse to represent snitches so that they will be hired by third parties (the proverbial "Mr. Bigs") wlio retain lawyers to defend their lackeys and who want to ensure that their hands are not bitten by those that they feed. This cynical view not only unfairly demeans the integrity of the defense bar, but also ignores the reality that a "no snitch" policy frequently requires a lawyer to turn away many potentially lucrative cases. Representing snitches is often extraordinarily profitable since it involves very little real work compared to what is necessary to vigorously defend a criminal case. D. Do the Guidelines Preclude Choice? Even attorneys who remain firmly opposed to representing informers recognize the substantial impact on this issue of the Federal Sentencing Guidelines and increased federal sentences. Many lawyers developed a revulsion to the informer system in an era when a defendant facing perhaps (at most) a parolable sentence of two to five years would assisted by his attorney put friends or associates in prison to avoid a relatively short term. The harsh guidelines and proliferation of draconian statutory mandatory minimum sentences have undeniably altered the moral calculus underljdng the decision of whether or not to participate in informer activities. Today lawyers are often persuaded to overcome their aversion to informer activities by the harsh consequences that will be visited on their clients under alternate scenarios. However, this does not justify the behavior of some "rollover" lawyers who revel in their work and, in effect, join the prosecution team. This unnecessary conduct can include refusing to give any non-privileged information to their former co-counsel, denying defense lawyers access to the witness, and/or perhaps violating preexisting joint defense agreements. At a minimum such behavior flies in the face of professionalism, and/or general ethical obligations of candor. It may at times even violate ethical and legal duties to '657

31 15:12 PROFESSIONAL RESPONSIBILITY protect privileged joint defense communications and defense work-product. It certainly is not required by a lawyer's obligation to advocate zealously on behalf of the client. Conclusion There is widespread recognition by defense counsel, prosecutors, and courts that informer activities are "fraught with peril."" Because of the well-documented degradation of our criminal justice system through the use of informers, many criminal defense lawyers refuse to represent snitches based on a personal moral code. No ethical rules require criminal defense attorrieys, who can otherwise protect their clients' interests, to ignore their moral dictates and violate the principled decision not to represent informers. All lawyers should support every attorney's right to follow his or her moral dictates in deciding whether to represent an informer. 'KS. V. Bernal-Obeso, supra, 989 P.2d 333. Chapter 16 Duties in I Research Refere: Text Reference Hollander and Be: 51:1 to 55:3 Am. Jur. 2d, Trial 'West's Digest 1 Criminal La-w <S=f 6 Annotation Re Propriety of attori others who are 715 ; Propriety of telep] A.L.R. 5th 451 Interference by pri of witnesses, 90 Accused's right to 652 'What is "statemen 125 A.L.R. Fed. Rule 26.2 of Fede] tion of stateme: 125 A.L.R. Fed. KeyCite : Casei be researched to check citat and compreh decisions and 658 I. INTRODU 16:1 Introduct II. DEALIM 16:2 Respect 16:3 Preparii 16:4 Condud