The Suppressed Confession and the Ethical Duty to Disclose
Defense attorney Rashid represents a client, Jamal, charged with fraud. The court suppressed Jamal's confession after finding the interrogation unlawful. At a meeting, Jamal tells Rashid: 'They got it right that I signed it, but I only did the fraud once, not the three times they claim.' The prosecution has charged three counts. Rashid knows the suppressed confession described only one transaction. The prosecutor, unaware of the confession's contents, offers to drop one count in exchange for a guilty plea to two. Rashid must advise Jamal on the plea and decide what, if anything, he may reveal.
1. Advise Jamal on whether to accept the plea, applying the standard for effective assistance of counsel.
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Standard. Effective assistance requires counsel to (1) investigate and understand the facts, (2) explain the charges and defenses, (3) communicate the plea offer and its consequences, and (4) give competent advice on whether to accept.
Application.
- The suppressed confession cannot be used at trial, but it may inform Rashid's assessment of the evidence.
- Jamal's admission to Rashid is confidential and cannot be disclosed.
- The plea to two counts avoids trial risk on three counts but requires Jamal to admit conduct he denies (two of three).
Advice. Rashid should explain the strength of the suppression ruling, the risk that other evidence supports the three counts, and the collateral consequences of a plea. He should not pressure Jamal. If Jamal insists he committed only one act, Rashid should explore whether a plea to one count is available and warn that pleading to two may expose him to perjury if allocution requires admitting two acts.
2. Determine what Rashid may ethically disclose to the prosecutor about the suppressed confession.
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Rule. A lawyer must not reveal information relating to the representation without informed consent, and must not use confidential information to the client's disadvantage. A suppressed confession is confidential.
Application. Rashid may not tell the prosecutor that the confession described only one transaction, because that would harm Jamal and breach confidentiality. He also may not use the information to negotiate a better deal by hinting at it.
Permitted conduct. Rashid may negotiate based on publicly available facts and the strength of the suppression ruling. He may argue that the evidence is weak without revealing the confession's contents. If Jamal consents, Rashid may disclose the one-transaction detail to seek a one-count plea, but only with informed consent confirmed in writing.