To fight or plea

While I was at the Harris County Criminal (In)justice Center this morning I ran into a colleague who used to have an office in the same building I'm in. He asked me if it was considered malpractice to plead out a client on a DWI case.

I told him no, I didn't think so, because sometimes the circumstances surrounding a case require you to negotiate a plea. For instance, suppose you have a client who picks up a DWI - but no one realizes there was a prior DWI conviction because it couldn't be confirmed at the time of the arrest. Now let's suppose it's a defensible case (not necessarily a winner, but a case that is winnable). Now what happens when the prosecutor offers your client a deal that doesn't take the prior conviction into account. What do you do?

If you believe that every DWI case should be fought to the bitter end, you run the risk that the prosecutor will uncover the prior conviction and muster his evidence to prove up the conviction at trial. Now, instead of time served and a fine, your client is looking at jail time or a long stretch on probation.

Were your client's interests served by refusing to entertain a plea offer? If you've increased your client's exposure without discussing the consequences with him - the answer is no. Entering into a plea might have been the best way to dispose of the case - but you refused even to consider it.

Throw in the DIVERT program (no matter how flawed) and there may be additional reasons to plead out that case rather than go to trial. If keeping that record clean is your client's most important concern then there are reasons to consider the program (just make sure your client is fully informed of both the benefits and risks of the program). Not allowing your client to make the decision whether to plead or go to trial is the worst mistake you can make.

Now, pleading out a DWI case on the first setting or before you've conducted any discovery is committing malpractice. The collateral consequences of a DWI conviction are too vast to plead out a client without investigating the case.

In our world, very little is black and white. We live in a world of grey. Always doing something or never doing something are equally harmful to our clients.