Can a criminal defense lawyer advise a client about drug treatment and a court diversion program, and recommend it even if failing carries harsher penalties?
NY State Bar Ethics Opinion 1106: Advising a criminal client on drug treatment and diversion
Short answer: A defense lawyer may advise a client about the benefits and risks of drug treatment and a court diversion program, and may even recommend it, but must competently explain the risks and alternatives, must follow the client's ultimate decision under Rule 1.2(a), and must obtain informed consent before the client signs any release of confidential treatment information to the court or prosecutors.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
A criminal defense lawyer whose clients sometimes have substance abuse issues asked whether he could counsel a client about addiction, advise the client to seek a substance-abuse evaluation and enter a court-sponsored diversion program (even where failing the program could bring harsher penalties than a straight plea), and let the client sign a release allowing a court-supervised program to receive treatment information.
On the first question, the opinion applies Rule 2.1, which directs a lawyer to render candid advice and permits reference not only to law but to moral, economic, social, and psychological factors relevant to the client's situation (¶ 6). A lawyer is not required to give non-legal advice, but when giving candid advice may discuss the pros and cons of treatment and point out consequences like recidivism and death (¶ 9). So the lawyer ethically may counsel the client about addiction and recommend a rehabilitation program (¶ 12).
On the duty to advise about diversion, Rules 1.4(a)(2) and 1.4(b) require the lawyer to consult about means and explain matters enough for the client to make informed decisions, and Rule 1.1(a) requires competence, so the lawyer must understand the diversion program, its sanctions, and the alternatives (¶ 13-14). The lawyer may recommend a program even though failure could bring harsh sanctions, if the lawyer believes there is a reasonable possibility of success (¶ 16). But the ultimate choice belongs to the client: Rule 1.2(a) makes the client's decision on objectives, and on a plea in a criminal case, controlling, even if the lawyer believes treatment is in the client's best interest (¶ 17-20).
On confidentiality, diversion typically requires the client to consent to release of treatment and monitoring information to the judge, attorneys, and court staff. That information is "confidential information" under Rule 1.6 because it is likely embarrassing or detrimental; by recommending diversion the lawyer is effectively asking the client to consent to disclosure, so the lawyer must counsel the client on how the disclosures could undermine privilege and must obtain informed consent before any waiver, and should seek to limit the scope of the release (¶ 21-23).
In practice
The opinion holds that, under Rules 2.1 and 1.4, a defense lawyer may and sometimes must advise a client on the non-legal and legal dimensions of drug treatment and a diversion program, including recommending it where success seems reasonably possible. Under Rule 1.2(a), the decision is the client's: once the client chooses, the lawyer must abide by it even if the lawyer disagrees about the client's best interest. Because diversion conditions usually require releasing treatment records under Rule 1.6, the lawyer must explain the privilege and detriment consequences, obtain informed consent before the client executes a waiver, and try to narrow the release.
Common questions
Q: Can a criminal defense lawyer counsel a client about drug addiction and treatment?
A: Yes. Rule 2.1 permits candid advice referring to moral, social, and psychological factors, so the lawyer may discuss the pros and cons of treatment and even recommend a program (¶ 9, ¶ 12).
Q: Can the lawyer recommend a diversion program that risks harsher sanctions on failure?
A: Yes, if the lawyer believes there is a reasonable possibility the client will succeed; but the lawyer must explain the program, its sanctions, and the alternatives first (¶ 15-16).
Q: Who decides whether to enter the program?
A: The client. Under Rule 1.2(a) the lawyer must abide by the client's decision on objectives and on the plea, even if the lawyer thinks treatment is in the client's best interest (¶ 17, ¶ 20).
Q: What about the treatment-information releases diversion requires?
A: The information is confidential under Rule 1.6, so the lawyer must counsel the client on the privilege and detriment risks, obtain informed consent before any waiver, and seek to limit the release's scope (¶ 22-23).
Background and rules framework
The opinion applies New York Rule 2.1 (advisor; ABA Model Rule 2.1), Rule 1.2 (allocation of authority; ABA Model Rule 1.2), Rule 1.4 (communication; ABA Model Rule 1.4), Rule 1.1 (competence; ABA Model Rule 1.1), and Rule 1.6 (confidentiality; ABA Model Rule 1.6). Rule 2.1 permits non-legal advice; Rule 1.2(a) assigns the client the ultimate decision on objectives and the plea; Rule 1.6 governs the treatment-record releases diversion requires.
Citations and references
Rules of Professional Conduct:
- MR 2.1 / NY RPC 2.1 (advisor)
- MR 1.2 / NY RPC 1.2(a) (allocation of authority)
- MR 1.4 / NY RPC 1.4(a), 1.4(b) (communication); MR 1.1 / NY RPC 1.1(a) (competence); MR 1.6 / NY RPC 1.6 (confidentiality)
Cases:
- Padilla v. Kentucky, 559 U.S. 356 (2010), duty to advise on collateral consequences of a plea
Other opinions cited:
- N.Y. State 769 (2003), N.Y. State 1037 (2014): lawyer's advisor role and abiding by client decisions
- N.Y. City 2011-2 (2011): advising on costs, benefits, and alternatives
See also
- NY State Bar Op. 1126: Confidentiality owed to a prospective client
- NY State Bar Op. 1124: Communicating with opposing counsel and party
Source
- Landing page: https://nysba.org/ethics-opinion-1106/