A lawyer who has a client that is considering entering into a cooperation agreement with a law enforcement agency has an ethical obligation to determine all relevant facts that should be weighed in such a decision, including the availability of protection for the client, and must advise the client, candidly, of the risks associated with the client's proposed cooperation. [ERs 1.1, 1.4, 2.1]
The inquiring attorney represents criminal defendants. Occasionally he has a client who enters into a cooperation agreement with law enforcement agencies. This, in turn, sometimes creates a risk of harm to the client or the client’s family. The inquiring attorney has received information leading him to conclude that Arizona law enforcement agencies have few or no resources to protect a cooperating client against whom there are credible threats of harm to the client or his family. There is no witness protection or relocation program, according to the inquiring attorney and the witness is provided little or no security.
Does a criminal defense lawyer have an obligation to advise a cooperating client of the risk that the client will not be afforded protection in the event of threats to the client or to his or her family? Must language to that effect be included in the cooperation agreement?
RELEVANT ETHICAL RULES
ER 1.1 Competence
A lawyer shall provide competent representation to a client.
Competent representation requires the legal knowledge, skill,
thoroughness and preparation reasonably necessary for the
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ER 1.4 Communication
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(b) A lawyer shall explain a matter to the extent reasonably
necessary to permit the client to make informed decisions
regarding the representation.
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ER 2.1 Advisor
In representing a client, a lawyer shall exercise independent
professional judgment and render candid advice. In rendering
advice, a lawyer may refer not only to law but to other
considerations such as moral, economic, social and political
factors that may be relevant to the client’s situation.
The lawyer’s obligation to a client who is deciding a proposed course of action is to explain benefits and risks fully so that the client can make an informed decision. ER 1.4; see ABA Standards for Criminal Justice Defense Function, Standard 4-3.8(b) (3d. Ed. 1993). The lawyer first must inform himself or herself fully about the relevant facts. ER 1.1. Then, the lawyer must advise the client with complete candor. ER 2.1; see ABA Standard 4.5.1(a).
The lawyer’s obligation to advise the client extends beyond purely legal considerations. See ER 2.1. The comment to ER 2.1 states in pertinent part:
Advice couched in narrowly legal terms may be of little value to a
client, especially where practical considerations, such as costs or
effects on other people, are predominant. Purely technical legal
advice, therefore, can sometimes be inadequate. It is proper for a
lawyer to refer to relevant moral and ethical considerations in giving
advice. . . .
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A client may expressly or impliedly ask the lawyer for purely
technical advice. When such a request is made by a client
experienced in legal matters, the lawyer may accept it at facevalue.
When such a request is made by a client inexperienced in legal
matters, however, the lawyer’s responsibility as advisor may include
indicating that more may be involved than strictly legal
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In general, a lawyer is not expected to give advice until asked bythe
client. However, when a lawyer knows that a client proposes a
course of action that is likely to result in substantial adverse legal
consequences to the client, duty to the client under ER 1.4 may
require that the lawyer act if the client’s course of action is related
to the representation. A lawyer ordinarily has no duty to initiate
investigation of a client’s affairs or to give advice that the client has
indicated is unwanted, but a lawyer may initiate advice to a client
when doing so appears to be in the client’s interest.
On the facts presented here, an “informed decision” by the client about whether to enter into a cooperation agreement clearly requires information about the potential personal risks arising from such an agreement. The lawyer therefore should inquire into the possible risks of cooperation under a particular set of circumstances, as well as the availability of protection in the event of threatened harm. If the lawyer concludes that the client may be at risk but unprotected, he or she must advise the client of this before the client enters into the agreement. The lawyer is in a much better position than the client to know the risks of the client’s proposed course of action. The client is not likely to be “experienced” in such matters, so he is relying on his attorney’s guidance in this regard. The client’s assumptions about the availability of protection for him or his family may be incorrect, if there is in fact no available “witness protection program”. Under these circumstances the attorney has an ethical responsibility to advise the client of the practical consequences, as well as the legal consequences, of his proposed course of action.
The lawyer’s ethical duty to advise the client of the real-world consequences of cooperation is different from the legal question of what advice must precede the guilty plea with which the cooperation may be associated. Generally, the Constitution and applicable procedural rules do not require the court to advise a defendant of the “collateral” consequences of a guilty plea. See e.g., Fruchtman v. Kenton, 531 F.2d 946, 949 (9th Cir. 1976) (immigration consequences of a plea); State v. Vera, 159 Ariz. 237, 238-239, 766 P.2d 110, 111-112 (App. 1988) (same). Similarly, the courts generally hold that the lawyer’s failure to advise a pleading defendant of collateral penalties does not fall below the Sixth Amendment minimum standard for effective assistance of counsel. See Torrey v. Estelle, 842 F.2d 234, 237 (9th Cir. 1988); State v. Rosas, 183 Ariz. 421, 423, 904 P.2d 1245, 1247 (App. 1995). These rules reflect that courts focus on whether the accused understands the law in relation to the facts, so that he or she can make an informed and conscious choice about whether to waive the procedural protections of a trial. State v. Rosas, 183 Ariz. at 423, 904 P.2d at 1247. The Ethical Rules, by contrast, reflect the client’s broader concerns. The client obviously would find it important to consider the effect of his decision on his immigration status, or his physical safety, or any number of other aspects of his life. To the extent that these matters are within a lawyer’s special competence, ER 1.4 and ER 2.1 call on the lawyer to inform and counsel the client.
Whether a written cooperation agreement should advise the client of the availability of witness protection is a question of judgment for the attorney. The Ethical Rules require the attorney to give complete information and candid advice, but they do not require the attorney to render the advice in any particular form. Again, the lawyer’s ethical duty should be distinguished form the requirements of criminal procedural rules or practice, which may require written advice of rights and memorialization of promises made in connection with a plea bargain.
If a lawyer has reason to believe that a cooperation agreement with law enforcement agencies may create a risk of harm to the client or the client’s family, the lawyer must inform himself or herself about the relevant facts, including the availability of protection in the event of an actual threat. The lawyer then must advise the client candidly of the risks of the client’s proposed decision to enter the cooperation agreement.