It is among the most difficult episodes in a defense counsel's practice.  Whether testifying on a former client's habeas petition under 28 U.S.C. § 2255 alleging ineffective assistance or on a motion brought by new counsel to withdraw a guilty plea, no defense attorney wants to respond to inquiries from the court or the Government about what the former client knew or agreed to at an earlier time.  Finding oneself in opposition to a former criminal client is uncomfortable, antithetical to the philosophy of advocating only to advance that client's welfare, and, a recent Fifth Circuit opinion holds, it may be unethical as well.

In United States v. Nelson, 232 F.3d 504 (5th Cir. 2013), an elected official convicted for taking bribes to promote the interests of a government contractor, argued on appeal that the District Court had improperly admitted at trial the factual admissions contained in a plea agreement which he had signed.  He never entered a plea of guilty, and went to trial instead.  At trial, the Government argued, and the trial judge agreed, that Nelson had intentionally and knowingly waived in the written plea agreement itself the protections afforded him under Fed. R. Evid. 410, which normally would bar the use of factual statements made in connection with plea negotiations which do not lead to a plea of guilty.  After all, the Supreme Court held nearly 20 years ago in United States v. Mezzanatto, 513 U.S. 196 (1995) that a defendant could effective waive such protections.

The Government called Nelson's former criminal attorney to testify at trial before the jury.  The attorney authenticated the written plea agreement and its waiver provision and factual statement, and, without discussing the details of her conversations with Nelson, told the jury that Nelson had read the document, had held a lengthy discussion with counsel about it, and had understood and agreed with its terms.  The plea agreement itself was not admitted into evidence, but the former attorney was directed to read its stated factual basis to the jury.  Nelson was convicted.

The Fifth Circuit noted that the mere appearance of an attorney testifying against her former client is "distasteful" and should only rarely occur, as when a former client's mental competence or the voluntariness of an action is at issue.  Id. at 519.  The court also suggested that taking such testimony outside the presence of the jury is even then a better practice.  Ibid.  Here, though, the testimony before the jury went beyond a general competence issue or a question about the voluntariness of Nelson's actions; when the former attorney testified that she and Nelson had a lengthy discussion and that Nelson understood and agreed with the plea agreement and its contents, according to the appeals court, the attorney's testimony invaded the attorney-client privilege.  Ibid.

However, Nelson had not made a contemporaneous objection to the former attorney's testimony on privilege grounds and the error was deemed harmless under a plain error analysis because the factual basis had after all been ruled admissible and could have been presented other than through the former attorney's testimony.  Ibid.  But the teaching point remains, and counsel should be very wary of being placed in a situation of opining about a former client's apparent awareness or understanding of signal events in the course of a criminal representation.

(Alain Leibman, Esq., the author of this entry and a co-author of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office.  A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts).

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