Week 9 Flashcards
Who determines the objectives of a lawyer’s representation: The lawyer, or the client?
The client.
MRPC 1.2
Does a lawyer require authorization to pursue certain legal matters?
Yes, but much of this authorization is implied.
E.g., lawyer doesn’t always need to consult with client to file a motion etc
MRPC 1.2
Who gets to decide whether to take a plea: the lawyer, or the client?
The client.
MRPC 1.2
Who gets to decide whether to waive a jury trial: the lawyer, or the client?
The client.
MRPC 1.2
Who gets to decide whether the client shall testify at trail: the lawyer, or the client?
The client.
MRPC 1.2
Can a lawyer limit the scope of their representation?
If so, what must be true/happen?
Yes, but only if the limitation is reasonable and the client gives informed consent (MRPC 1.2)
Can a lawyer counsel their client to do something the lawyer knows to be fraudulent or illegal?
No.
MRPC 1.2
Can a lawyer explain to their client the legal consequences of doing something the lawyer knows to be fraudulent or illegal?
Yes, but must be careful not to assist the client in doing illegal conduct
(MRPC 1.2)
What is the holding of Missouri v Frye?
Holding: The 6th Amendment requires defense counsel to communicate plea offers to their clients.
What is the holding of Lafler v. Cooper?
Defendants have a right to effective assistance of counsel in the plea bargaining process under the 6th Amendment.
What is the holding of U.S. v. Ruiz?
Prosecutors do not have to reveal witness impeachment information to defendants when negotiating a plea agreement
i.e., gov’t can condition a plea offer on the accused’s waiver of the right to impeachment evidence
What is Strickland’s ineffective assistance of counsel test?
1) defense counsel’s performance must’ve been objectively deficient AND
2) deficiency must’ve prejudiced the client
how can a defendant show he was prejudiced by an attorney’s failure to communicate a plea offer (Frye)?
show a reasonable probability that he would’ve accepted the plea deal AND that it would’ve been accepted by the court (Frye)
does a defendant have a right to a plea deal?
NO!
if a defendant ultimately receives a fair trial, was the ineffective assistance of counsel at the plea stage ultimately harmless?
No! a fair trial does not absolve ineffective counsel at the plea stage
how could a defendant show prejudice re: Strickland by an ineffective counsel at the plea stage? (Lafler)
show the loss of the plea offer resulted in a more serious conviction or sentence than would’ve otherwise been imposed
If there was ineffective assistance of counsel at the plea stage, what is the appropriate remedy?
Prosecution must re-offer the original plea bargain
why do prosecutors not have to disclose impeachment information at the plea bargain stage?
plea bargaining is not a trial, and the right to exculpatory impeachment information is a TRIAL right
how would forcing disclosure of impeachment information at the plea bargaining stage cause resource issues?
government relies heavily on plea bargains to save time, money, and resources. system couldn’t operate effectively without them
At the outset of a representation, can the client authorize the lawyer to take specific action on the client’s behalf without further consultation?
If so, can this be revoked?
Yes. The client retains the right to revoke this advance authority at any time
does representing a client constitute approval of the client’s views and/or activities?
NO
can a limitation on the scope of services exclude actions that the client thinks are too costly?
Yes
can a limitation on the scope of services exclude actions that the lawyer regards as repugnant or imprudent?
Yes
is a guilty plea an acknowledgement of the underlying factual charges?
Yes (McCoy)
must the prosecutor tell the defendant the consequences of pleading guilty?
Yes
e.g., Padilla - must tell defendant that if he pled guilty, he’d be deported
Can a judge be involved/facilitate a plea negotiation in a criminal case?
NO
why would a judge not accept a plea?
- the vast majority of offered pleas are accepted
doesn’t agree with the proposed sentence, either it’s too high or too low
Why does the Jenks Act not require the government to turn over witness information until AFTER they testify?
worries about witness intimidation tactics
