Monday, May 12, 2008
Guest Blogger - Gordon Kirsch (rising 3L Stetson University College of Law)
Session V: Legal Ethics: A View from the Bench - A Summary by Gordon Kirsch
In the last session of the White Collar Crime Institute held at Stetson University College of Law, hypotheticals were discussed by several federal judges (Chief Judge Patricia C. Fawsett, Judges Richard A. Lazarra, Anne C. Conway, Mary S. Scriven, Thomas B. McCoun III).
The first problem questioned whether attorneys can stipulate to the application of a guideline, knowing that it might not be applicable in their case? As each of the judges weighed in, the answer became clear -- full candor toward the tribunal is required and a judge should not accept pleas based on facts which do not exist.
The second problem asked whether the defense attorney can enhance facts as part of a plea agreement to avoid a minimum mandatory sentence. The conclusion here was that a judge has an obligation to explore the full facts and decide for him or herself whether they support the plea. Again, full candor is needed and it should be emphasized that judges are not party to plea agreements and can refuse to enforce them.
Problem three was a short problem asking whether a prosecutor can suggest the defense agree to a smaller amount of damages as part of a securities fraud plea agreement? Every judge agreed that full candor was necessary and that this should not be allowed.
The final problem involved a large conspiracy and issues related to entering into a joint defense agreement with the alleged co-conspirators. Discussed were issues such as attorney-client privilege. Among the attorneys in the audience, many expressed their views that often the joint defense agreements are not worth the paper they are written on, though in some circumstances they may be necessary.