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A colleague admits trading off clients’ interests for intended welfare of them all.

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Bill of Rights. (From the public domain.)

I advise my clients to go to trial when the likely outcome of an innocent plea seems no worse than the outcome from a guilty plea, after giving them an assessment of their chances with an innocent plea versus a guilty plea. Sometimes this approach results in an acquittal, whether unexpected or not. Sometimes it leads prosecutors to soften their negotiating position with me. Sometimes it leads to a prosecutorial dismissal when the prosecutor does not have the necessary witnesses nor evidence available on the trial date. Sometimes it leads the judge to postpone the trial if the day’s trial calendar is too booked, only for the prosecutor’s necessary witnesses not to appear the next time, which might result in a dismissal of the prosecution. Sometimes clients feel little choice than to plead innocent, when a guilty finding risks a probation violation, deportation, loss of security clearance, and risks to educational and career prospects.

Recently, I was speaking with a colleague whom I previously assumed was an admirable and effective fighter for his clients. Our talk turned to a court where he appears often, but I do not. He focused on the importance of gaining credibility with judges (and prosecutors, too, I presume) by encouraging clients to plead guilty when they do not seem to have much of a chance to win. He thinks this gets judges to listen closer at bench trials when his clients do plead innocent, and to more acquittals at those bench trials.

I told this lawyer I was disturbed by such an approach, unless at least he was telling clients that he wished to trade off that clients’ rights so that they all might benefit somehow as a group. I told him that I do not go frequently enough to the court he discussed, for it to help my general universe of clients to advise them to plead guilty merely to gain such "credibility". In fact, one of the benefits of my having a law practice that takes me around the Washington, DC, Beltway and beyond is that I often get a fresher start with judges and prosecutors by them often seeing me on occasion rather than more frequently than that.

I would like to think that a lawyer builds credibility by showing s/he fights zealously and effectively for each client, always tells the truth, knows the applicable law and how to try a case effectively without wasting time on matters of no beneficial consequence, and does not bare nor use fangs when not needed. It is the prosecutor’s burden to prove a defendant guilty beyond a reasonable doubt, and not the criminal defense lawyer’s burden to do so.

What are your thoughts and experiences on this topic? Jon Katz.