Docket Day Deposition, Plea, and Negotiations

Question

Prior to Docket Day, is it required for the defendant's attorney to provide him or her with the deposition and/or final plea? Can the defendant's attorney tell the defendant to sign the plea because some time later the attorney will get a portion of the plea removed?

Answer 1

An attorney is ethically obligated to receive client approval for any plea, and this must as a matter of criminal procedure, this must generally be approved by a personal signature or open court statement of the defendant and not his (or her or their) lawyer.

If the attorney says this, and the court accepts the plea without modification and does not remove any portion of it, then the criminal defendant is bound, even if his attorney told him otherwise -- potentially subject to a collateral attack for ineffective assistance of counsel in a post-trial habeas corpus petition or the equivalent depending upon exactly what the lawyer told the defendant about this practice (which is unlikely to prevail).

It is better practice for a defense attorney to provide a final plea in advance of a hearing, but this is not a ground for setting aside a plea and is probably not even malpractice or unethical conduct on the part of the defense attorney. It wouldn't be unusual for a plea to be renegotiated on the spot at the hearing contrary to a proposed plea shared with a client prior to the hearing.

Likewise, while it is better practice to provide materials such as a deposition to a client prior to a hearing, this is not required as a matter of professional ethics for the defense attorney or as a matter of criminal procedure (unless there is, for example, some local court rule or judge's standing order to the contrary, of which I am unaware in the court in question, such a rule wouldn't be unconstitutional or illegal, but would be quite unusual).