General Question

luigirovatti's avatar

Is it even possible to breach attorney-client privilege when conducting a plea deal in front of the court?

Asked by luigirovatti (3001points) April 4th, 2022

To illustrate what I mean, I’ll quote an example on the legal TV series “Suits” described by TV Tropes. If it’s inappropriate for this forum, I apologize, I’ll later tell my own interpretation, but I can’t say it any other way.

The description is the following:

Mike Ross faces a dilemma when a client confesses to him that he was stoned when he hit and killed someone with his car. Mike has just secured the client a nice plea bargain on the assumption that the death was purely accidental. Mike’s parents were killed by a drunk driver and his conscience won’t let him keep quiet about what he knows and thus sabotaging the deal, making a weak attempt at hiding how he found out. Katrina realizes that he’s broken confidentiality and chooses to accept the plea bargain anyway, before calling him out on it in private. This one is incidentally okay since a plea bargain is conducted in court: a failure to report the information would violate Mike’s duty of being honest to the tribunal, and would also possibly be suborning perjury (i.e. allowing someone to lie to the court). Of course, Mike isn’t actually a lawyer anyway…

MY INTERPRETATION: I guess what it means is, Mike must violate his attorney-client privilege in front of a judge, and to avoid the court reporter transcribing everything he says, the judge could always let him do it in chambers. Still, he can’t make a plea deal AND not violate his confidentiality at the same time. Still, I’m not an attorney, so I ask you, the experts, to spell it out for me.

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6 Answers

kritiper's avatar

No friggin’ way. Some things are sacred.

Tropical_Willie's avatar

Only if the two of them conspired to commit fraud . . . stay tuned to Trump and his conspiring lawyers.

JLoon's avatar

@luigirovatti – I realize you’re living in Italy, and not a US citizen. What I can’t tell is whether you’re seriously trying to learn American law from novels, tv, and movies – or whether you’re just hooked on crime fiction and legal dramas.

Either way, questions like this have the potential to confuse and mislead people when it comes to their rights, and their relationship with anyone who represents them in court. Please, keep in mind there’s a big difference between some made up plot in a fictional story, and what actually happens in a real court with with real people dealing with real laws.

I’m NOT AN ATTORNEY, and I can’t practice law or give you or anybody else legal advice. But I’m a trained paralegal with experience researching law, investigating facts, and assisting at trial in both civil and criminal cases. And based on that I can tell you from experience that the situation you’re talking about is so bogus it makes me cringe.

There is no exception to the attorney-client privilege that would ever apply in the circumstances you describe. None. The real rule is found in Federal Rules of Practice No. 410 “Pleas, Plea Discussions, and Related Statements”
https://www.law.cornell.edu/rules/fre/rule_410

It says : In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:

(1) a guilty plea that was later withdrawn;...

(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

So Mike what’s-his-name gets to make all the dramatic moves while he “wrestles with his conscience” over screwing a client out of a plea deal they’re clearly entitled to. Any lawyer pulling that bullshit in actual case could be sued by their client and probably face disbarment. But in this story he’s lucky enough to have Katrina around to save his sorry ass.

If you think this stuff upests me you’re right. More than once I’ve seen people fuck themselves over in court because they won’t confide important facts to counsel, or because they think they’re qualified to argue their own case after bingewatching a few seasons of Law and Order. Don’t make that mistake.

luigirovatti's avatar

@JLoon: I’m just a fan of legal thrillers. I’m not trying to replace real law with laws in fictional settings. I just want to confirm suspicions I already have. You must understand that, although the examples I post aren’t bad from the standpoint of real life, they’re a big deal for fans of TV series like the one I posted about.

luigirovatti's avatar

@JLoon: That said, I guess what I’m trying to ask is: if the defendant pleads to a lesser crime, how can the defendant avoid to commit perjury for a greater crime. After all, the judge is gonna ask him/her questions to establish his/her state of mind, and if (s)he doesn’t admit his/her greater crime, he’s effectively committing perjury.

JLoon's avatar

@luigirovatti – No. That’s not how plea bargaining really works in US courts. Under our system as well as British law an accused person is always presumed innocent until proven guilty, or unless they choose to admit guilt. It’s a very different standard than what applies almost everywhere else in the world, and it means no one can be forced to incriminate themselves at any point in an official proceeding.

So, accepting a deal offered by the prosecution and negotiated by a defense attorney does NOT mean a defendant has to admit to any other wrongdoing. Understand that almost all plea bargaining involves what’s called a “lesser included offense”.

A typical example is a prosecution offer to drop charges from felony burglary, to a misdemeanor theft in exchange for a guilty plea. Simple theft is always part of burglary, but the penalty is less severe. The judge will only ask if the defendant understands the charge and the punishment, and whether their guilty plea is given feely and voluntarily.

Pleading guilty to any lesser offense never means that the presumption of innocence is given up for other crimes.

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