Can a lawyer change his client&#39;s plea? In the 1987 movie, The Untouchables, there is a courtroom scene in which Al Capone's lawyer spontaneously announces that his client wants to change his plea to guilty and Capone displays his displeasure with that by attempting to attack his attorney. The change of plea is apparently accepted by the court. Is this just a movie fiction or did this happen in reality? Can an attorney change his client's plea without the client's consent?
Legally and ethically (in the United States), an attorney is required to have the consent of his client to change a plea. If that happened in open court, the plea would not have been accepted. The pertinent part of Rule of Professional Conduct 1.2(a) which is essentially identical in ever U.S. state, states: "A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify." There is also constitutional criminal procedure case law to that effect, although as a lawyer who practices exclusively in civil matters, it doesn't come as quickly to mind. Now, Al Capone's plea bargain took place on June 16, 1931. The pertinent ethical rules and constitutional criminal procedure cases may not have been in place at that time, and I certainly don't know the state of the law back then well enough to opine confidently upon it. Wikipedia recounts what happened (numerous citations omitted): The IRS special investigation unit chose Frank J. Wilson to investigate Capone, with the focus on his spending. The key to Capone's conviction on tax charges was proving his income, and the most valuable evidence in that regard originated in his offer to pay tax. Ralph, his brother and a gangster in his own right, was tried for tax evasion in 1930. Ralph spent the next three years in prison after being convicted in a two-week trial over which Wilkerson presided. Capone ordered his lawyer to regularize his tax position. Crucially, during the ultimately abortive negotiations that followed, his lawyer stated the income that Capone was willing to pay tax on for various years, admitting income of $100,000 for 1928 and 1929, for instance. Hence, without any investigation, the government had been given a letter from a lawyer acting for Capone conceding his large taxable income for certain years. On March 13, 1931, Capone was charged with income tax evasion for 1924, in a secret grand jury. On June 5, 1931, Capone was indicted by a federal grand jury on 22 counts of income tax evasion from 1925 through 1929; he was released on $50,000 bail. A week later, Eliot Ness and his team of Untouchables inflicted major financial damage on Capone's operations and led to his indictment on 5,000 violations of the Volstead Act (Prohibition laws). On June 16, 1931, at the Chicago Federal Building in the courtroom of Judge James Herbert Wilkerson, Capone plead guilty to income tax evasion and the 5,000 Volstead Act violations as part of a ​2 1⁄2-year prison sentence plea bargain. However, on July 30, 1931, Judge Wilkerson refused to honor the plea bargain, and Capone's counsel rescinded the guilty pleas. On the second day of the trial, Judge Wilkerson overruled objections that a lawyer could not confess for his client, saying that anyone making a statement to the government did so at his own risk. Wilkerson deemed that the 1930 letter to federal authorities could be admitted into evidence from a lawyer acting for Capone. Wilkerson later tried Capone only on the income tax evasion charges as he determined they took precedence over the Volstead Act charges. Much was later made of other evidence, such as witnesses and ledgers, but these strongly implied Capone's control rather than stating it. Capone's lawyers, who had relied on the plea bargain Judge Wilkerson refused to honor and therefore had mere hours to prepare for the trial, ran a weak defense focused on claiming that essentially all his income was lost to gambling. This would have been irrelevant regardless, since gambling losses can only be subtracted from gambling winnings, but it was further undercut by Capone's expenses, which were well beyond what his claimed income could support; Judge Wilkerson allowed Capone's spending to be presented at very great length. The government charged Capone with evasion of $215,000 in taxes on a total income of $1,038,654, during the five-year period. Capone was convicted on three counts of income tax evasion on October 17, 1931, and was sentenced a week later to 11 years in federal prison, fined $50,000 plus $7,692 for court costs, and was held liable for $215,000 plus interest due on his back taxes. The contempt of court sentence was served concurrently. New lawyers hired to represent Capone were Washington-based tax experts. They filed a writ of habeas corpus based on a Supreme Court ruling that tax evasion was not fraud, which apparently meant that Capone had been convicted on charges relating to years that were actually outside the time limit for prosecution. However, a judge interpreted the law so that the time that Capone had spent in Miami was subtracted from the age of the offences, thereby denying the appeal of both Capone's conviction and sentence.
In the event that a lawyer stops representing the client, and the client openly has told the lawyer that they have committed a crime, would it be legal for the lawyer to testify against them? Generally, no. The attorney-client privilege survives the termination of the attorney-client relationship. So, the lawyer cannot testify against the client. There are exceptions to the general rule. The two most important ones are as follows: There is a crime-fraud exception to the attorney-client privilege that applies when someone uses an attorney's services for the purposes of carrying out a crime and the attorney is a knowing or unwitting co-conspirator. For example, if the crime the client confesses to is to defrauding investors in a securities prospectus that the client has the lawyer draft for the client containing false information about the company and then tells the lawyer after it has been sent to investors who put lots of money into the company that the statements the client told the lawyer to put in the prospectus were intentional lies made for the purpose of defrauding the investors. An attorney is entitled to testify if the client effectively waives the privilege in the context of disputed issues between an attorney and a client such as a malpractice lawsuit or an ethics complaint lodged against a lawyer where the lawyer's testimony concerning the privileged communications is necessary to defend the lawyer. For example, if the client sues the attorney for malpractice for refusing to present a key witness at trial causing the client to lose the case, the attorney can defend himself or herself by stating that the attorney knew that the witnesses testimony would have been false because the client told him &quot;X&quot;.
Discovery Basically, you ask. If your opponent thinks your request is out of bounds they object, give their reasons to the judge, you give yours and the judge orders them to produce the evidence or not. A lot of people think court cases have big “ah-ha” movements when a witness reveals something unknown on the stand. This rarely happens because there are no secrets in litigation - both sides have to clearly explain their case before, usually well before, they go to trial.
Only in a civil case Yes, in a civil case, Alice generally can call Bob as a witness to take the stand. In many cases, this is done very early, locking in their testimony, before expert witnesses or other evidence by the plaintiff are presented to try and undermine the testimony. Alice may ask only questions that have relevance to the case. Let's take for example a dispute about a contract: Alice may ask Bob if he engaged in negotiations to form the contract, about the matter of the contract, if he signed the contract, or how he (or his employees) fulfilled (or not) the contract. Pretty much everything that pertains to the contract or the execution thereof. This does not extend to the settlement of the case or attempts thereof. Alice may not ask if Bob has an affair with Clarice unless that somehow is material to the contract at hand. Alice may not re-ask questions where an objection was sustained in the same way. However, Bob might not need to answer all questions (there are things that are banned from being asked), especially as Bob's attorney will object to questions. A few examples of competent questioning can be seen towards the end of My Cousin Vinnie, though this is a criminal trial. Never in a criminal trial In a criminal trial, not only can the prosecution not call Bob to the stand, he has to elect to go to the stand to even be questioned by the prosecution. That is because he can &quot;plead the 5th&quot;. There is a tiny exception for civil cases, where they can do so there too.
The judge would reject the defendant's guilty plea and proceed to trial. This is a common part of a plea colloquy, which is a standard (often scripted) conversation that occurs between the judge and a defendant who is pleading guilty to ensure that the plea is voluntary and made with knowledge of its possible consequences. It seeks to ensure that the defendant is aware of what they're charged with and the consequences of their plea, and that they were not improperly pressured into pleading guilty—for example, because they felt that their lawyer wasn't doing a good enough job. This is required by Federal Rules of Criminal Procedure Rule 11, which requires that: Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and determine that the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement) Many (possibly most/all) US states have similar rules. For example, Pennsylvania law states that &quot;The judge may refuse to accept a plea of guilty or nolo contendere, and shall not accept it unless the judge determines after inquiry of the defendant that the plea is voluntarily and understandingly tendered.&quot; Examples of scripted questions to establish this include: Are you fully satisfied with the counsel, representation, and advice given to you in this case by your attorney, Mr./Ms. __________? Are you satisfied with the services of your lawyer? [ Mr./Ms. defendant ], are you satisfied with the representation you have received from [ Mr./Ms. defense counsel]? If the defendant answered that they were not satisfied (and continued to give that answer when informed of the consequences of doing so, as occurred in the below example), the judge would reject the guilty plea and proceed to trial. It's remarkably difficult to find a case in which anyone has actually done this. The only one I could find was this New Jersey case in which the &quot;defendant would not agree on the form that he was satisfied with defense counsel's work.&quot; The judge informed the defendant in various ways that this would lead to the plea being rejected and proceeding to trial: Now, if you are not satisfied with your lawyer, I cannot take your plea bargain, sir. ... The only other thing I can do is schedule you for trial, Mr. Cuevas, which you are entitled to. Now, if you are not satisfied with your lawyer, I cannot take your plea bargain, sir. I can't take your plea after you're telling me that you're dissatisfied with your lawyer. If I can't take your plea because it's not appropriate and it's not legal, the only other thing I can do is schedule the case for trial.
Does B have a legal obligation to inform A that changes were made to the document? This is definitely not a simple yes-no question. One ought to consider not only the tenets of contract law, but also notions of equity and of public policy. On the one hand, courts acknowledge modified contracts that result from a battle of the forms. On the other hand, sliding changes in the contract without adequately directing the counterparty's attention to them tends to contravene the contract law covenant of good faith and fair dealing. In the scenario you outline, imagine the inefficiency and risk of mistake if the parties engage in several rounds of offers and counter-offers by sliding changes scattered all over the latest draft of a contract (this is totally feasible, especially as laws nowhere limit the number of times a party can make a counter-offer). Unless each party is conspicuous about his latest changes to the contract, the dynamics can easily become a matter of which party inadvertently binds himself to unacceptably detrimental clauses (some of which might re-occur after being stricken in a previous draft). This hinders the contract law prerequisite that a contract be entered knowingly and willfully. Although the parties are responsible for reading the contract, subjecting the offeror/offeree to devote valuable resources each time a newly altered contract goes from one direction to the other seems contrary to public policy. Furthermore, that defeats the purpose of negotiations and of the prior efforts each party spent toward the contract (such as valuations and risk analysis). I'm just curious to understand what legally prevents this type of things from happening in general. An offer may include language to the effect of accepting the contract 'as is'. See the provision in the Uniform Commercial Code (for instance, see MCL 440.2207(2)(a)) whereby alterations are precluded "[if] the offer expressly limits acceptance to the terms of the offer". The aforementioned statute also precludes terms which significantly alter the contract. See MCL 440.2207(2)(b). In a context of loan contracts --apropos of your example--, a borrower's unilateral alteration of the interest rate, of payment schedules, etc. constitute material alterations. Indeed, financial institutions are utmost sensitive to changes in interest rates and the timing of cash flows. Even in the case of an offeree's immaterial alterations of a contract, an offeror might prevail under principles of equity. This is more evident in the case of entities which enter and manage a multitude of contracts simultaneously, be it via contracts of adhesion or upon negotiations with each counterparty. In line with my point on public policy, the additional cost of filtering a counterparty's last minute occurrences would make it impossible for economies of scale to develop.
The primary question, in case of such a lawsuit, is whether you accepted the terms of the contract. You could accept the terms verbally, or you could accept them with a signature, or you could even accept by behavior (such as showing up to work). If you breach the contract and you want to make the argument that you didn't accept the offer (or some identifiable part of the offer), the plaintiffs would have a "yes you did" piece of paper to support their side. Now you would have to advances a very dangerous claim, that you didn't sign the document and that the signature there is a forgery. This is dangerous, because you perjured yourself in so testifying (it would eventually come down to you testifying, that you didn't sign the document). It's really beyond the scope of Law SE to get into forensic graphanalysis debates, but you should expect that the other side will have compelling expert testimony that you did in fact sign the document, with your other hand. In a civil suit (breach of contract), the other side would have to show that it is most likely that you did agree to the terms. It isn't just about the signature, it's about all of the evidence, which would include eyewitness testimony ("I saw him sign it", "I gave him the pile of papers and he returned them all, signed" or a later conversation "Remember that you agreed to X" – "Yeah, whatever").
It happens all of the time, even though it is mildly improper. Usually, the lawyer can get away with it until the judge sternly warns the lawyer not to try it again, in which case the lawyer risks being held in contempt of court. This is riskier for a prosecutor (who risks this conduct causing a conviction to be overturned on appeal resulting in a new trial), than for a criminal defense attorney. This is because an acquittal, if obtained by these methods, is still not subject to appeal. Indeed, for a criminal defense attorney, even if it results in a mistrial followed by a new trial (which can be allowed if the mistrial is caused by the conduct of the defense), the mistrial will often count as a win if the trial was going badly on the merits.