Week 9

Question 1

Who determines the objectives of a lawyer’s representation: The lawyer, or the client?

Answer 1

The client.

MRPC 1.2

Question 2

Does a lawyer require authorization to pursue certain legal matters?

Answer 2

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

Question 3

Who gets to decide whether to take a plea: the lawyer, or the client?

Answer 3

The client.

MRPC 1.2

Question 4

Who gets to decide whether to waive a jury trial: the lawyer, or the client?

Answer 4

The client.

MRPC 1.2

Question 5

Who gets to decide whether the client shall testify at trail: the lawyer, or the client?

Answer 5

The client.

MRPC 1.2

Question 6

Can a lawyer limit the scope of their representation?

If so, what must be true/happen?

Answer 6

Yes, but only if the limitation is reasonable and the client gives informed consent (MRPC 1.2)

Question 7

Can a lawyer counsel their client to do something the lawyer knows to be fraudulent or illegal?

Answer 7

No.

MRPC 1.2

Question 8

Can a lawyer explain to their client the legal consequences of doing something the lawyer knows to be fraudulent or illegal?

Answer 8

Yes, but must be careful not to assist the client in doing illegal conduct
(MRPC 1.2)

Question 9

What is the holding of Missouri v Frye?

Answer 9

Holding: The 6th Amendment requires defense counsel to communicate plea offers to their clients.

Question 10

What is the holding of Lafler v. Cooper?

Answer 10

Defendants have a right to effective assistance of counsel in the plea bargaining process under the 6th Amendment.

Question 11

What is the holding of U.S. v. Ruiz?

Answer 11

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

Question 12

What is Strickland’s ineffective assistance of counsel test?

Answer 12

1) defense counsel’s performance must’ve been objectively deficient AND
2) deficiency must’ve prejudiced the client

Question 13

how can a defendant show he was prejudiced by an attorney’s failure to communicate a plea offer (Frye)?

Answer 13

show a reasonable probability that he would’ve accepted the plea deal AND that it would’ve been accepted by the court (Frye)

Question 14

does a defendant have a right to a plea deal?

Answer 14

NO!

Question 15

if a defendant ultimately receives a fair trial, was the ineffective assistance of counsel at the plea stage ultimately harmless?

Answer 15

No! a fair trial does not absolve ineffective counsel at the plea stage

Question 16

how could a defendant show prejudice re: Strickland by an ineffective counsel at the plea stage? (Lafler)

Answer 16

show the loss of the plea offer resulted in a more serious conviction or sentence than would’ve otherwise been imposed

Question 17

If there was ineffective assistance of counsel at the plea stage, what is the appropriate remedy?

Answer 17

Prosecution must re-offer the original plea bargain

Question 18

why do prosecutors not have to disclose impeachment information at the plea bargain stage?

Answer 18

plea bargaining is not a trial, and the right to exculpatory impeachment information is a TRIAL right

Question 19

how would forcing disclosure of impeachment information at the plea bargaining stage cause resource issues?

Answer 19

government relies heavily on plea bargains to save time, money, and resources. system couldn’t operate effectively without them

Question 20

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?

Answer 20

Yes. The client retains the right to revoke this advance authority at any time

Question 21

does representing a client constitute approval of the client’s views and/or activities?

Answer 21

NO

Question 22

can a limitation on the scope of services exclude actions that the client thinks are too costly?

Answer 22

Yes

Question 23

can a limitation on the scope of services exclude actions that the lawyer regards as repugnant or imprudent?

Answer 23

Yes

Question 24

is a guilty plea an acknowledgement of the underlying factual charges?

Answer 24

Yes (McCoy)

Question 25

must the prosecutor tell the defendant the consequences of pleading guilty?

Answer 25

Yes

e.g., Padilla - must tell defendant that if he pled guilty, he’d be deported

Question 26

Can a judge be involved/facilitate a plea negotiation in a criminal case?

Answer 26

NO

Question 27

why would a judge not accept a plea?

• the vast majority of offered pleas are accepted

Answer 27

doesn’t agree with the proposed sentence, either it’s too high or too low

Question 28

Why does the Jenks Act not require the government to turn over witness information until AFTER they testify?

Answer 28

worries about witness intimidation tactics