By H. Michael Steinberg Colorado Criminal Defense Lawyer
Introduction to Part 2
In Part 1 of this two-part series, the basics of a claim of ineffective assistance of counsel at the plea bargaining stage of a criminal case were explored. Part 2 delves into the more complex, and often difficult “mechanics” of the attorney-client relationship as regards the duty to maintain only the clearest of communication during that critical stage.
A Defendant’s constitutional right to the effective assistance of counsel during the plea bargaining phase of a criminal case, (once it is clear that negotiations have ended and it is the time to finally and fully advise a Defendant to either accept or reject a “final” plea offer), raises the following questions,
(1) What is the extent and the nature of the advice that should be communicated to the client? (and)
(2) How should the lawyer convey that advice to the client?
Once negotiations are truly at an end within the context of a criminal case and the criminal defense lawyer has formed a final opinion about the plea bargain offer from the government, it seems obvious that the lawyer would comprehensively explain all options available to their client. Even more obvious is that any opinion offered to the client without the underlying justifications and rationales for that opinion would be of no value to a client.
While this may appear to seem both simple and obvious … it is neither …in the actual practice of criminal defense law.
The duty to properly advise the client, a person to whom a criminal defense lawyer owes the highest duty of all professionals, a “fiduciary duty” includes the responsibility to attempt to persuade the client to follow the lawyer’s opinion.
The Duty of Loyalty
RESTATEMENT OF THE LAW GOVERNING LAWYERS §16(3)
All lawyers are fiduciaries, which is to say they owe clients fiduciary duties.
A fiduciary duty is the duty of an agent to treat his principal with the utmost candor, rectitude, care, loyalty, and good faith–in fact to treat the principal as well as the agent would treat himself.
The common law imposes that duty when the disparity between the parties in knowledge or power relevant to the performance of an undertaking is so vast that it is a reasonable inference that had the parties in advance negotiated expressly over the issue they would have agreed that the agent owed the principal the high duty that we have described, because otherwise the principal would be placing himself at the agent’s mercy.
An example is the relation between a guardian and his minor ward, or a lawyer and his client.
The ward, the client, is in no position to supervise or control the actions of his principal on his behalf; he must take those actions on trust; the fiduciary principle is designed to prevent that trust from being misplaced.
For many lawyers, it is much easier to remain “professionally detached,” from their clients to avoid the emotions and anxiety that attend every this, and almost, every important decision made during the course of a criminal case. This detachment clearly can include one of the most critical of the decisions to be made in a criminal case, “taking a plea” or “going to trial.”
The second part of this 2 part series – explores the fiduciary obligation placed on the shoulders of criminal defense attorneys to properly advise their clients as to the precise reasons for accepting or rejecting a plea offer and the uncomfortable task of trying to persuade the client to accept their advice when the client’s visceral reaction to being “pushed to plead” can be understandbvle anger and hostility.
The duty to go the extra mile for one’s client is at the very foundation of the Constitutional guarantee of the “effective assistance of counsel.”
“OK – Fine – Let’s Go to Trial”
As noted, there are times when a criminal defense lawyer is convinced that a long-negotiated plea is the only course of action to avoid the potentially disastrous consequences at trial. At these times it is the lawyer’s duty to not only convey the plea offer, but to provide a comprehensive opinion explaining why accepting the offer makes sense in the individual case.
If, after a thorough investigation of the evidence of the facts and evidence in a case and plea negotiations have been fully exhausted terminating in a “final offer,” the Defendant still refuses that offer and insists on taking the case to trial, things can become complicated.
In this situation, the criminal defense lawyer is left with two tasks (choices):
(Task 1) Stop trying to persuade the client to accep the offer and take the case through trial – or
(Task 2) Continue trying to encourage the client to change his or her mind and to accept the plea offer.
Task 2 is not only unpleasant, it is almost always unrewarding. Many lawyers choose to NOT discharge their responsibility of taking on their client’s angst, tough questions, and strong resistance to the plea offer. However, the attorneys that choose to discharge their duty to the client and take on this difficult task – who are willing to “take the heat” – in my opinion – have the client’s, not their own, interests in mind and, by doing so, fully discharge their fiduciary duty to their client.
It is far easier for the lawyer to avoid the inevitable conflict that comes from task 2 by emotionally distancing themselves from the controversy- by “standing back” and letting the client’s rejection of the plea bargain carry through to trial. This may be much easier but it is taking the low, not the high, road as a criminal defense lawyer.
When a defense lawyer ratchets up the pressure to take an offer, it is common for the client to begin to question the lawyer’s motivations and allegiances, to no longer trust their lawyer. If the defense lawyer succeeds in convincing the client to accept his or her advice and avoids the grave risks of, for example, a lengthy mandatory prison sentence following a guilty verdict, while it may have been the logical and right thing to do, …. the unsettling feeling of compromise is always there for both the lawyer and the client.
How Hard Should Your Lawyer Push Their Client to Accept a Plea Bargain? – Boria v. Keane
Boria v. Keane 897 F.Supp. 809 (1995)
Whle the case of Boria v. Keane, 83 F.3d 48, 53 (2d Cir. 1996), was decided 16 years before the Lafler/Frye line of cases, the case helps to further define and to explain a criminal defense lawyer’s duty to go farther than just “convey” a plea offer.
Facts: Defendant, Oscar Boria, was the subject of a so-called “buy/bust” drug prosecution. He was arrested for selling cocaine to an informant. As a first-time offender, he was offered a plea bargain of a one-to-three-year sentence in exchange for a guilty plea.
The prosecutor warned Boria’s lawyer that if the plea offer was rejected a more serious felony charge would be filed and the plea agreement would be withdrawn. The plea and its terms were conveyed by the lawyer to Boria – but there was no discussion about the reasons to accept or reject the offer. Boria rejected the offer, went to trial on the greater charge, and was sentenced to twenty years to life in prison.
Oscar Boria appealed his case arguing that… because his criminal defense lawyer failed to advise him on whether he should accept the plea bargain offer, the lawyer violated his duty to his client to provide “effective assistance of counsel.” Boria’s lawyer readily conceded that he never counseled his client on whether or not to accept the plea bargain, because, in the lawyer’s view it was “his” decision.
The record was clear that the lawyer did these things – he:
Repeatedly met with the Defendant to discuss the plea offer;
Pointed out the risks of rejecting the offer;
Reviewed the defenses including suppression hearing issues in the case; and
Informed his client the Defendant’s chances at trial were poor.
Throughout these meetings, Boria maintained that he was innocent and maintained the position that he would never plead guilty, “especially if a plea included a jail sentence.”
While Boria’s lawyer preformed the task of informing his client about the issues listed – he never offered his opinion to Boria as to what Boria should do.
Boria won his appeal – and his case ushered in a new and closer look at the obligations of criminal defense lawyers to their clients during the plea bargaining phase of criminal cases.
Boria stands for the proposition that Defendants have a constitutional right to a fully informed and fully explained opinion on whether to plead guilty or to go to trial. Boria’s lawyer was found to have been ineffective based on the fact that the lawyer did not go far enough in urging his client to make the right decision under the circumstances of the case.
A Defense Lawyer Does Not Have the Option of Remaining “Neutral” on the Decision to Accept or Reject a Plea Bargain
Impacting the traditional attorney-client paradigm is an emerging area of thought known generally as “client-centered lawyering.” The primary method of communication in this new area, intended to promote completely independant client decision-making, includes techniques to ensure that clients make their own decisions.
The lawyer’s goal in the client-centered approach is to avoid “unduly” influencing his or her client by communicating the lawyer’s neutrality and not offering overly paternalistic advice or opinions. “Client-centered” lawyers attempt to vest their clients with complete control, autonomy, and decision-making authority remaining purely neutral.
Here is the rub, a defense lawyer should never offer an opinion about a plea offer (or any important advice for that matter) without the reasoning and the bases that support that recommendation. If the lawyer has an opinion but does not convey the importance of accepting the offer and the risks of rejecting the offer and does not utilize the passion necessary to persuade their client to accept that opinion, in my opinion, they have failed their client.
A client in a criminal case must not only hear, but fully comprehend and understand, all of the reasons why their attorney recommends a particular court of action – a specific decision. The many factors that support a particular decision, for example, to accept or to reject a plea bargain offer, should be marshaled deliberately, consciously, openly, and – yes, sometimes, very forcefully.
Only then, when every side of a plea offer is fully understood, has the criminal defense lawyer discharged their fiduciary duty to their client and the client’s final decision is a fully informed decision.
“Allowable Persuasion” – When does a Defense Lawyer’s Advice to Accept a Plea Bargain Constitute “Coercion?”
It is well understood that any person caught up in the criminal justice system will most naturally be filled with the anxiety, fear, and even anger that arises after one is charged with a crime. Very real barriers to effective communication sometimes work to place limits on the comprehension of the information – the advice – that Defendants receive from their lawyer.
Clear and informed decisions made in “crisis mode” are difficult. Sometimes the right conclusion based on the actual and very real evidence can be psychologically impossible. While the “client-centered” approach may be growing in popularity and may at first appear to be the latest trend – providing advice on whether to accept a plea bargain or take a case to trial – in my opinion, “techniques,” while popular, may have no application to the individual case.
Clients require hard facts and hard advice.
When the client disagrees with their attorney’s advice, the decision may be based, not on a clear-eyed assessment of the risks involved, but on emotion.
The following questions now arise:
How hard should the lawyer persist in trying to force the client to change their mind?
What methods should be employed to urge a Defendant to do what is in their best interests?
Unlawful Coercion?
As noted above, the line between unethical coercion and good lawyering can be blurred. But this much is evident, a criminal defense lawyer’s efforts to persuade their client to accept or to reject a plea will almost never be found to have rendered the client’s decision to accept or reject a plea offer factually “involuntary.”
The “constitutionally offensive” kind of coercion that leads to a reversal on appeal is almost never present in the attorney-client relationship. Although the claim “my lawyer made me take the plea” is often repeated by Defendants in the courtrooms of Colorado, it is allmost never the case. Strong urging to take action, the kind of pressure to accept sound advice, almost never amounts to unconstitutional coercion.
As one law professor put it: “[t]he limits of allowable persuasion arc fixed by the lawyer’s conscience.”
Any attempt to persuade a defendant-client to accept or to reject an offer must be made in the context of a relationship of based upon mutual trust and respect. The clearer the choices that are available in a given case, the more a defense lawyer should urge the client to follow that lawyer’s advice.
The force behind any attempt at persuading the client to accept their advice will almost always be commensurate with the clarity of the decision. Put a little differently, the clearer the choice, the harder the lawyer should push to ensure that the client understands completely the advice and the foundations for that advice.
The difficulty in this situation is maintaining the client’s trust. This involves measuring the risk of causing irreparable damage to the attorney-client relationship by pushing “too hard.” If the client chooses to proceed to trial, after being fully advised, means this – to maintain the absolute trust between the parties is essential to any chance at success during trial – the push to accept the plea offer must END.
It has been my experience that many criminal defendants do understand the complexities of their cases when those are carefully and methodically explained and all questions have been answered. When a lawyer pushes too hard for a result the client has rejected, that lawyer, in the eyes of their client becomes yet another oppressive force of a broken unjust criminal justice system.
The task of the criminal defense lawyer is to function ‘as the instrument and defender of the client’s autonomy and dignity in all phases of the criminal process.” Falling back on the rubric “it was his decision” avoids the tough journey that is necessary to bring meaning to those words.
In the final analysis, it is the client – the accused who makes the ultimate decision. There must be room for disagreement of course, but for the client to have complete faith that he or she will be vigorously and zealously represented no matter what the final decision, when the client has made the decision – all debate must end.
Summary and Conclusion – Lafler/Fyre – How “Effective” is Your Lawyer During the Plea Bargaining Stage Part 2
The Lawyer Does Not Go to Prison
A criminal defense lawyer who takes a case to trial knowing that the an offer to settle was both fair and reasonable, and who knows that the evidence of guilt is overwhelming and that a guilty verdict is almost certain, risks nothing. It is the Defendant that takes all of the risks.
If the client is convicted and sentenced much more severely than would have occurred as a result of the plea offer, the lawyer leaves the courtroom unaffected. If questioned about the decision to take the case to trial, the lawyer can always fall back on the excuse that it was “ my client’s decision to take the case to trial, not mine.”
The lawyer who cares, at the most fundamental levels, about the welfare of their clients will take the necessary time and effort to change the client’s mind about taking the case to jury trial. That lawyer has discharged his or her responsibility to that client.
It is that lawyer whose commitment to do the right thing, to take the high road by pushing their client harder to think about their options, and who risks the wrath of that client, has fullfilled their fiduciary duty to their client.
Truly effective assistance of counsel requires that attorneys attempt to convince clients to accept their advice. If that legal counseling is done with empathy, compassion and understanding, the relationship survives.
“A person charged with a crime requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”
United States Supreme Court – Powell v. Alabama, 287 U.S. 45, 69 (1932)
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Never stop fighting – never stop believing in yourself and your right to due process of law.
As a former career prosecutor for Arapahoe and Douglas Counties, he has a unique understanding of the criminal justice system that works to his clients’ advantage to better protect their rights. H. Michael also knows how to talk clearly and very directly to his clients, his adversaries and to the Court. He uses his life experience, common sense, and straight talk to help clients fully understand and make decisions regarding their options.
If you are ready to talk, H. Michael stands ready to help.