The Need For Discretion

Recently, in browsing a well-known local lawyer’s website, I found the following “News” article on their blog:

Attorney X convinced a [local] prosecutor to dismiss Armed Robbery charges, all felonies, and all gun charges, despite the defendant being caught nearly red-handed with a shotgun in his fleeing vehicle.

The defendant plead to Second Degree Assault, a misdemeanor, giving him a strong chance to avoid certain deportation that he would have faced with any felony or gun charge. He will be eligible for parole in one month.

While there may be some ethical concern over publicizing past successes without adequately informing potential clients that there is no guarantee of such success in any particular case, that is not my main concern. The biggest problem with this self-serving news article is that it may harm the client in the future.

What if the ICE Assistant Chief Counsel (the title of immigration prosecutors) in a future deportation case against that client stumbles across this “article”? Unfortunately, it would be all too easy for the ICE prosecutor to find. Can the admission by the client’s attorney be used to try to form the requisite admission of facts?

The fact that this article is not part of the official record of conviction does not end the inquiry – admission of underlying facts can also be used to show that a conviction is one that leads to removability or deportation. The client would then be in the position of arguing that although his attorney may have admitted the underlying facts, he did not do so himself. Would that argument be successful? I don’t think anyone knows at this point, but it’s much better to avoid the situation altogether.

And this situation is avoidable. Is it so important to promote the practice that the attorney should put this up in the first place? Is this attorney hoping that other potential clients “caught nearly red-handed” with guns in their fleeing cars will think the attorney will also get them off?

I think a potential client would be better served in knowing that no matter what the alleged facts in their case, the attorney will never divulge them to serve the attorney’s own interests. They should not be divulged at any time except to the extent that it might help the client.