The pun was, of course, inevitable. It was also fully intended. In fact, it is, at least for me, repetitive as back in 2013 I was asked to do a seminar on the ethics of being a notary public — they have their own ethics code — and I called it “Notary-ly Common Topic: The Intersection of Lawyer and Notary Public Ethics.”
I’m writing today about a relatively straightforward criminal case arising out of federal court in the Northern Mariana Islands but that has at least four interesting lawyer ethics percolating under the surface of it. The decision also has one of the most elegant and timeless statements penned by the district judge authoring the opinion that I’ve read in a federal court opinion. It is either one of the most useful statements of insight into the human condition or one of the best pieces of universal (but indirect) advice to offer to anyone – including lawyers — or possibly both.
In case you want to stop reading at this point, I’ll just share with you the district judge’s statement which, for many reasons (no matter when you manage to read this) will be timely:
Probably every adult feels that there is some important decision she has made that she wishes she could do over. But that does not mean she did not make that decision voluntarily and did not know what she was doing at the time.
To be exceedingly candid, I’m also writing this post about this case because an incredible lawyer, and a giant in the field of legal ethics issues, Bill Freivogel, brought the case to my attention and encouraged to me to think I might have something to say about it that would be worth reading.
The case is U.S. v. Li and you can grab the PDF of it here: United States v. Li (D. N.Mariana Is., 2018). In sum, Li was a notary public. He managed to mess up a document he was notarizing for a passport application for a minor child, and the application was rejected for that discrepancy. When folks reassembled to try to fix it and reapply, the father had already flown back home to China. Despite the fact that it was contrary to the ethics code for a notary public, and despite the fact that the form was requiring him to speak under oath, Li signed the form misrepresenting under oath that the father was physically present the second time when he was not.
It seems clear that Li did this thinking that it was his own mistake that created the problem and that this would fix the error. How the falsehood came to light is much less clear, but it did and Li was charged with two federal criminal counts related to false statements on a passport application.
A week before the case was set for trial, the parties submitted a plea agreement and proceeded to a change of plea hearing. At that hearing, Li’s attorney – Holmes – was present as was a more senior attorney from Holmes’ law firm. The opinion walks through the fairly detailed line of questioning the federal judge presented to Li designed to ensure that the record was crystal clear about the voluntariness of the guilty plea. These questions solicited many clear answers demonstrating voluntary and knowing decision-making, including Li’s statements that he was fully satisfied with his attorney’s advice and legal representation.
Two months after the guilty plea was entered and about two months before the date set for sentencing, a new lawyer for Li filed a notice of appearance. About 45 days later, Holmes moved to withdraw from representing Li citing “professional reasons.” That motion was denied without prejudice based on failure to demonstrate good cause.
Two things then occurred right about a week before sentencing: Li, through the new counsel, filed a motion to withdraw the guilty plea and Holmes renewed the motion to withdraw now pointing to statements in a pre-sentence report that were alleged to create a conflict between her firm and Li. This renewed motion to withdraw was granted. (The opinion does not provide a ready explanation or insight into what the nugget was in that pre-sentence report that Holmes was forced to surface in order to be let out of the case.)
The order then details what Li argued as his grounds for seeking now to withdraw his guilty plea – it largely involved accusations that his attorneys would not listen to him and coerced him – through time pressures, denigrating his chances at trial, and hammering the potential of a prison sentence of more than a year, even allegedly going so far as to tell Li that he would be sexually assaulted if he had to do prison time.
The district court, however, was entirely unconvinced by Li’s allegations and walked through an objective view of what the attorney time records, and other underlying documents, showed about the events that occurred surrounding the plea negotiations.
Three of ethics issues here are, I think, readily recognizable.
The case is at least an indirect reminder for attorneys that RPC 1.2 doesn’t provide crystal clear guidance on all decision-making as between clients and attorneys but leaves no room for doubt that the decision whether to plead guilty in a criminal matter is always the client’s to make.
The case also is a good, indirect reminder to attorneys who have support staff who are notaries that your obligations under RPC 5.3 can be considered to include having some measures in place to provide reasonable assurance that they know how important complying with the law and their own code of ethics as to notarizing documents can be. (For the record, there was no indication in the opinion itself that Li had any employment situation where he was working for an attorney.)
Also, the case reveals how sometimes – despite the best efforts of the drafters of the rules – the guidance given to attorneys seeking to withdraw from representation doesn’t always work as designed. ABA Model Rule 1.16 cmt. [3] tries to provide guidance to attorneys about situations when they should begin by stating only that “professional considerations” require withdrawal and indicating the hope that courts will accept that “statement as sufficient,” but courts do not always go along and end up putting attorneys into a situation where they have to disclose information the client might rather not have aired.
The fourth ethics issue, however, is not as obvious but is, I think, the most interesting and compelling. The district judge, without explicitly saying so, made clear that if the lawyers had scared Li into pleading guilty “by conjuring the nightmare of sexual assault in prison,” that would have been the kind of thing that could have “put their bar license on the line.” I’m torn on that front. Obviously, if the lawyers had actually threatened to cause that to happen or otherwise crossed lines into coercing someone against their will to plead guilty, then I’d agree wholeheartedly. But, if a lawyer representing someone facing potential jail time, and knowing their client had the chance to take a plea that was likely to result in no jail time at all, engaged their client in discussions about the possibility of going to prison and the realities of the problems in the U.S. prison system including the statistics on violence and sexual assault that happens there on a daily basis, would that really be unethical conduct?
I tend to think the exact opposite. I think that a lawyer would certainly be entitled under Model Rule 2.1 to discuss as “other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.” In fact, depending on the client and the likely prison in play, a lawyer might well be ethically obligated to discuss such issues under Model Rule 1.4(b)’s obligation “to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”