Plea Negotiations and Waivers: A Reminder

The Fifth Circuit started 2019 with a reminder to counsel.

In United States v. Hicks, No. 17-51101 (5th Cir. Jan. 2, 2019) (unpublished), the court cautioned counsel: “pursuing an appeal contrary to a valid waiver and without responding to the Government’s invocation of the waiver is a needless waste of judicial resources and could result in sanctions.” The defendant had appealed his 168-month, within guidelines sentence for a crack-cocaine offense. The government sought to enforce the waiver, which covered the defendant’s right to appeal “any” aspect of the defendant’s conviction or sentence. The court dismissed, finding the waiver applied.

Just another reminder for counsel to proceed with caution in negotiating plea agreements when waivers are on the table.

Case Analysis, by James McComas (a review)

James McComas has written an excellent short book that deserves to be on the shelf of every criminal defense attorney.
His core insight is that, in every case, only a few facts and circumstances determine the outcome for either side. Once these “outcome levers” are identified, our job as defense lawyers is to eliminate or minimize our opponent’s points and maximize ours.
To this end, McComas advocates a five step process:

1. Identify Legal and Factual Theories.

2.  Identify Outcome Levers. McComas defines an outcome lever as “anything — a fact, a piece of evidence, a psychological reality, a jury feeling, a current event, a cultural phenomenon, or other factor — that is capable, in and of itself, of determining the outcome for one side or the other.”

3.  Maximize or minimize outcome levers.
The most readily available means to maximize or minimize outcome levers include:
  • Investigation
  • Continuing Case Analysis
  • Pretrial motions litigation
  • Arranging expert testimony
  • Preparing to cross examine opposing witnesses
  • Preparing defense witnesses to testify
  • Well founded timely objections
  • Jury instructions
  • Voir Dire
  • etc.
4.  Choose the Best Theory of the Case
5.  Identify and Deal with Trapdoors. McComas defines trapdoors as “reasoning by which jurors can buy most of our position but still return a verdict against our client.”
McComas then goes on to describe what attributes he believes a theory of the case must have before it will be accepted by the jury. It must be:
  1. Productive of an acquittal.
  2. Possible
  3. Plausible
  4. Persuasive
  5. Playable, i.e. not too close to the reality our opponent seeks.
  6. Powerful
  7. Provable.
It is my belief that whether they do so deliberately or subconsciously, all great trial lawyers engage in some form of the process McComas advocates. Up until now, young lawyers had to discover these truths for themselves or be lucky enough to learn them from a mentor. Now they are available to all.


On UpJohn Warnings

In our practice we often work with counsel representing corporate clients. These engagements often involve Government investigations and parallel civil or regulatory litigation. One issue that arises frequently is what steps counsel for the corporation should take to inform employees of who she represents, what the attorney-client privilege is, and who gets to decide what communications are disclosed to the government.

This is an important topic because if counsel for the corporation fails to inform the employee that her loyalty is to the corporation and not to the employee, then the employee can claim that an attorney-client relationship was created between the employee and corporate counsel. This may have three negative effects: first, it can result in the lawyer and the lawyer’s law firm being disqualified from representing either the employee or the corporation; second, it can prevent the disclosure to the government of the communications between the attorney and the employee, even if such disclosure would be in the company’s best interest; and third, it can create the possibility of a malpractice lawsuit against the attorney and her firm.

To avoid these unintended consequences, corporate counsel must provide the employee with Upjohn warnings.  See Upjohn Co. v. United States, 101 S. Ct. 677 (1981).These warning consist of making the following disclosures to the company employee before the interview begins:

Explaining to the employee what role each participant (in house or outside counsel, investigator, etc.) is playing in the interview;

Explaining to the employee that the in-house or outside counsel represents the company and not the individual employee;

Explaining to the employee that the interview is being conducted under the  “umbrella” of the attorney-client privilege;

Confirming with the employee that she understands what the attorney-client privilege means and explaining it if necessary;

Explaining to the employee that the privilege belongs to the company, and not to the employee;

Explaining to the employee that the company considers the interview to be privileged and confidential and that the employee should not disclosed to anyone else what was said at the interview;

Explaining to the employee that because the privilege surrounding the interview belongs to the company, the company has the right to determine at some point in the future that will “waive” or give up that privilege, and that the company has the sole right to do that if it chooses;

Explaining to the employee that from time to time companies do waive privilege  on communications with employees and allow government agencies to have access to the contents of communications;

Explaining to the employee that such waivers of privilege are not done lightly, but that it is important for the employee to understand that the privilege belongs to the company and the company can waive it; and finally

Asking the employee if he or she has any questions about these issues.

The attorney whose standard pre-interview script covers these matters will have successfully avoided the pitfalls that can occur when an employee later claims an attorney-client relationship with in-house or outside counsel.

If you have any questions about  UpJohn warnings, or any other criminal law related matter, please don’t hesitate to call us at (713) 228-5900.