I do not represent people who “snitch,” “rat,” or cooperate, which means giving information against others to the government in order to avoid criminal charges, receive leniency, or get some other type of consideration. Three major reasons exist for my policy. First, representing people who cooperate does not require any legal expertise. I have not dedicated myself to the art and science of criminal defense law to help the government convict more people, virtually all of whom are likely innocent or nowhere as guilty as the person cooperating will make them look. Second, because of the government’s incentives to and pressures on the person cooperating, innocent people are often charged and convicted, and I will not be a part of helping the government do its dirty work. Third, a person who cooperates could implicate one of my clients and, whether true or not, create a conflict of interest where one did not exist before. If the government offers you a deal to cooperate, I will certainly convey it to you and not pass any judgment if you choose to cooperate. But should you cooperate, I will withdraw from your case and not refund any portion of the fee you pay me.Tell me what you think.
Thursday, October 25, 2007
The No-Snitches Clause
Here is what I now put in my contracts on federal cases. (I cribbed it from another lawyer who has had the no-snitches policy for a long time.):
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9 comments:
Should have done it years ago.
Amen.
I like the concept, but in practice I'm not sure it works. Would the judge allow you to withdraw, and how would you argue that you should be allowed to withdraw? Here in Norman, Oklahoma, I find it difficult to withdraw unless I can show that the client has become a fugitive.
Viscerally I like your idea, but upon second thought . . .
I am a fairly new AFPD, and so I don't have the luxury of abandoning my clients. Also, I disagree with the notion that representing a cooperating client does not require legal skills. Trial advocacy skills perhaps. Cooperating clients require a skilled lawyer to guide them through the process and watch their back. Someone needs to be sure that clients who stick their necks out will get a substantial assistance motion. Look, the Rumpole in me wants to contest every case, but that is my personal inclination and desire. That course of action may not be in the best interests of my client.
Tstanek, thanks for the comment. I don't know the answer to that, but I figure I'm likely not to be hired by the people who are most likely to cooperate, so the problem is not likely to arise often.
Anon, I agree that PDs (and lawyers taking CJA cases, which I did until my recent resolution no longer to help the government put people in prison) can't draw this line.
"Do whatever is in the best interests of the client" is patently a fiction, though. Most would agree that a defense lawyer should not help the client do something illegal even if it is in the client's best interests. Snitching is legal (indeed, encouraged by the law), but I am taking this a logical step forward and declaring that I won't help a client do a particular thing that I consider unethical (ethics being a very personal matter for the individual) even though it might help the client.
I read once that 2/3 of people sticking their necks out and seeking 5K1s don't get them. The standard 5K1 sentence reduction in this district, I have heard, is 1/3. So, cetera paribus, the average value to the cooperator of his cooperation is a 1/9th sentence reduction. (Big whoop.)
Since whether to file a 5K1 or not is entirely in the discretion of the government, I have never seen the need for legal skills in representing cooperators. Wheedling skills, yes, but nothing that I am trained to do. If there are legal skills required, I'd like to hear about them; that would raise another facet of this issue: if representing snitches requires some special legal skills that I don't know about, I don't have them and therefore should refer cooperators to lawyers who do.
The 2/3 statistic, as far as I know, is innaccurate and certainly does not apply in my jurx. Most folks who cooperate see a reduction, sometime 25-50% off their sentences. But even if the 2/3 (1/9) statistic is correct, the year (or even month) or two of liberty that a client gets back from the Government may be worthwhile to a particular client.
Obviously the "best interests" line was in the context of the topic of discussion, not of committing an illegal act. Perhaps because of my role as PD I haven't given much thought to what ethical issues might exist helping a client spend time with his family and not in cage. What are they exactly? Again, as a FPD and with our screening process, the conflict issue does not apply.
As for what lawyering skills are needed during the cooperation process, that's simple. There are no special skills involved and I know you realize that. Our role is to be the client's advocate and confidant throughout the process. Does that require the psuedo acting skills learned at some seminar or govt boondoogle to dazzle the jury? Or a career law clerk's detailed knowledge of federal case law? Probably not. But being available to advise a client and watch his back is a fundamental part of lawyering. And if the client does not get credit when credit is due, then the lawyer can step in and advocate that he should.
Again, I think the principle behind the no snitch clause is appealing on some level (I may save your post in case I ever go back to private practice and reconsider the issue!).
When I read it, I thought of Jack Nicholson's rat immitation in The Departed! Glad to see a fellow criminal defense attorney is putting his foot down in the all-too-common race-to-prosecutor game that so many criminal defense lawyers engage in (often before any real factual or legal investigation). As for anonymous, who said "cooperating clients require a skilled lawyer to guide them through the process and watch their back," we all know what really goes on at these snitch get-togethers--the defense lawyer just sits there like a potted plant, an accomplice in what is called "cooperation" but is really nothing more than obstruction of justice. Imagine what would happen if we defense lawyers gave a witness something of value for his testimony.
I think it is ironic when law enforcement bitches about people clamming up, and then maitains it's own "no snitch rule" in house. Sure, every cop aspires to IAD...
Heroic, Mark!
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