In the 1987 movie, The Untouchables, there is a courtroom scene in which Al Capone's lawyer spontaneously announces that his client wants to change his plea to guilty and Capone displays his displeasure with that by attempting to attack his attorney. The change of plea is apparently accepted by the court.

Is this just a movie fiction or did this happen in reality? Can an attorney change his client's plea without the client's consent?


Legally and ethically (in the United States), an attorney is required to have the consent of his client to change a plea. If that happened in open court, the plea would not have been accepted.

The pertinent part of Rule of Professional Conduct 1.2(a) which is essentially identical in ever U.S. state, states:

"A lawyer shall abide by a client's decision whether to settle a matter. 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 jury trial and whether the client will testify."

There is also constitutional criminal procedure case law to that effect, although as a lawyer who practices exclusively in civil matters, it doesn't come as quickly to mind.

Now, Al Capone's plea bargain took place on June 16, 1931. The pertinent ethical rules and constitutional criminal procedure cases may not have been in place at that time, and I certainly don't know the state of the law back then well enough to opine confidently upon it. Wikipedia recounts what happened (numerous citations omitted):

The IRS special investigation unit chose Frank J. Wilson to investigate Capone, with the focus on his spending. The key to Capone's conviction on tax charges was proving his income, and the most valuable evidence in that regard originated in his offer to pay tax. Ralph, his brother and a gangster in his own right, was tried for tax evasion in 1930. Ralph spent the next three years in prison after being convicted in a two-week trial over which Wilkerson presided. Capone ordered his lawyer to regularize his tax position. Crucially, during the ultimately abortive negotiations that followed, his lawyer stated the income that Capone was willing to pay tax on for various years, admitting income of $100,000 for 1928 and 1929, for instance. Hence, without any investigation, the government had been given a letter from a lawyer acting for Capone conceding his large taxable income for certain years. On March 13, 1931, Capone was charged with income tax evasion for 1924, in a secret grand jury. On June 5, 1931, Capone was indicted by a federal grand jury on 22 counts of income tax evasion from 1925 through 1929; he was released on $50,000 bail. A week later, Eliot Ness and his team of Untouchables inflicted major financial damage on Capone's operations and led to his indictment on 5,000 violations of the Volstead Act (Prohibition laws).

On June 16, 1931, at the Chicago Federal Building in the courtroom of Judge James Herbert Wilkerson, Capone plead guilty to income tax evasion and the 5,000 Volstead Act violations as part of a ​2 1⁄2-year prison sentence plea bargain. However, on July 30, 1931, Judge Wilkerson refused to honor the plea bargain, and Capone's counsel rescinded the guilty pleas. On the second day of the trial, Judge Wilkerson overruled objections that a lawyer could not confess for his client, saying that anyone making a statement to the government did so at his own risk. Wilkerson deemed that the 1930 letter to federal authorities could be admitted into evidence from a lawyer acting for Capone. Wilkerson later tried Capone only on the income tax evasion charges as he determined they took precedence over the Volstead Act charges.

Much was later made of other evidence, such as witnesses and ledgers, but these strongly implied Capone's control rather than stating it. Capone's lawyers, who had relied on the plea bargain Judge Wilkerson refused to honor and therefore had mere hours to prepare for the trial, ran a weak defense focused on claiming that essentially all his income was lost to gambling. This would have been irrelevant regardless, since gambling losses can only be subtracted from gambling winnings, but it was further undercut by Capone's expenses, which were well beyond what his claimed income could support; Judge Wilkerson allowed Capone's spending to be presented at very great length. The government charged Capone with evasion of $215,000 in taxes on a total income of $1,038,654, during the five-year period. Capone was convicted on three counts of income tax evasion on October 17, 1931, and was sentenced a week later to 11 years in federal prison, fined $50,000 plus $7,692 for court costs, and was held liable for $215,000 plus interest due on his back taxes. The contempt of court sentence was served concurrently. New lawyers hired to represent Capone were Washington-based tax experts. They filed a writ of habeas corpus based on a Supreme Court ruling that tax evasion was not fraud, which apparently meant that Capone had been convicted on charges relating to years that were actually outside the time limit for prosecution. However, a judge interpreted the law so that the time that Capone had spent in Miami was subtracted from the age of the offences, thereby denying the appeal of both Capone's conviction and sentence.


Under the Federal Rules of Criminal Procedure as they exist today (I'm not about to dig through the rules in the 1930s), a lawyer cannot make a guilty plea on his client's behalf. According to Rule 11, a court cannot accept a guilty plea unless the judge addresses the defendant personally in open court to make sure that the plea is voluntary, that the defendant knows what he's pleading guilty to, and that the defendant knows the consequences of a guilty plea. In particular, Rule 11(b)(2) says:

Ensuring That a Plea Is Voluntary. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and determine that the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement).

Even if Capone didn't jump up and object, the judge couldn't take the lawyer's word for it that Capone wanted to plead guilty. Under (modern) federal rules, the judge would need to hear it directly from Capone in open court.

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