Take the Plea: Take the Plea: How Forceful Can and How Forceful Can and

Should You Be?Should You Be?

MD Rules of Professional MD Rules of Professional Conduct, PreambleConduct, Preamble

““As advocate, a lawyer zealously As advocate, a lawyer zealously asserts the client’s position under the asserts the client’s position under the rules of the adversary system.”rules of the adversary system.”

““[T]he lawyer’s obligation [is] [T]he lawyer’s obligation [is] zealously to protect and pursue a zealously to protect and pursue a client’s legitimate interests, within client’s legitimate interests, within the bounds of the law . . .”the bounds of the law . . .”

Evidence We Wish Evidence We Wish They Didn’t HaveThey Didn’t Have

WiretapsWiretaps Evidence Seized Pursuant to Evidence Seized Pursuant to

WarrantsWarrants Cooperator TestimonyCooperator Testimony ConfessionConfession Law Enforcement EyewitnessesLaw Enforcement Eyewitnesses Videotaped SurveillanceVideotaped Surveillance Incriminating Text MessagesIncriminating Text Messages

MD Rules of Professional Conduct, MD Rules of Professional Conduct, Rule 1.2, Scope of Representation Rule 1.2, Scope of Representation

and Allocation of Authority and Allocation of Authority Between Client and LawyerBetween Client and Lawyer

“In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive a jury trial and whether the client will testify.”

See also Florida v. Nixon, 543 U.S. 175, 187-92 (2004); United States v. Chapman, 593 F.3d 365, 368 (4th Cir. 2010) (citing Nixon and reiterating that the decisions that are exclusively a defendant’s are whether to plead guilty, waive a jury, testify, and appeal).

““After consultation”After consultation”

Rule 1.2 directs that the client’s decision to plead guilty or go to trial should be made “after consultation” with his attorney.

““Consultation”Consultation”

“Consultation” is defined as “communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.”

See MD Rules of Professional Conduct, Rule 1.0, Terminology.

““CommunicationCommunication””

MD Rules of Professional Conduct, Rule 1.4, Communication:

“A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

MD Rules of Professional MD Rules of Professional Conduct, Rule 2.1, AdvisorConduct, Rule 2.1, Advisor

“In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”

Comment to Rule 2.1, AdvisorComment to Rule 2.1, Advisor

Commentary: Scope of advice.[1] A client is entitled to straightforward advice

expressing the lawyer's honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client's morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.

[5] Offering advice. When a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, the lawyer's duty to the client under Rule 1.4 may require that the lawyer offer advice if the client's course of action is related to the representation. Similarly, when a matter is likely to involve litigation and, in the opinion of the lawyer, one or more forms of alternative dispute resolution are reasonable alternatives to litigation, the lawyer should advise the client about those reasonable alternatives.

ABA Standards for Defense ABA Standards for Defense FunctionFunction

Standard 4-5.1 Advising the Accused (a) After informing himself or herself fully

on the facts and the law, defense counsel should advise the accused with complete candor concerning all aspects of the case, including a candid estimate of the probable outcome.(b) Defense counsel should not intentionally understate or overstate the risks, hazards, or prospects of the case to exert undue influence on the accused's decision as to his or her plea.

ABA Standards for Defense ABA Standards for Defense FunctionFunction

Standard 4-6.2 Plea Discussions(a) Defense counsel should keep the accused advised of developments arising out of plea discussions conducted with the prosecutor.(b) Defense counsel should promptly communicate and explain to the accused all significant plea proposals made by the prosecutor.

What Should and Can You Do?What Should and Can You Do?

Meet with Client - RepeatedlyMeet with Client - Repeatedly Review Discovery with Client - Repeatedly Review Discovery with Client - Repeatedly Write Letters Write Letters Provide Copies of Case LawProvide Copies of Case Law InvestigateInvestigate Mini-Mock TrialMini-Mock Trial Meet with FamilyMeet with Family Get Help from Other AttorneysGet Help from Other Attorneys