Could a Vermont defense lawyer advise a client to sign a plea waiver and sign the prosecutor's attorney certificate?
Apply this to your situation
This page answers the general question as of 1999. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A county prosecutor required criminal defendants to sign a prosecution-drafted waiver form and defense counsel to sign an attorney certificate before entering a plea agreement. The committee said the client owned the decision whether to plead and had to receive full advice about the waiver's legal consequences, including its possible effect on confidential lawyer-client discussions.
The committee found it improper for the lawyer to advise signing the particular waiver provision stating that the client had fully discussed the charges, defenses, and choice between trial and plea with counsel. It viewed that provision as a likely waiver of privilege and a possible limit on later claims against counsel.
It also found all three proposed versions of the attorney certificate ethically improper for the requesting lawyer to sign. The certificate could confirm the substance of privileged communications, be used as evidence of a knowing plea, and limit the client's later remedies. The committee did not decide the prosecutor's conduct or the legal validity of the form.
Currency note
This 1999 opinion applied Vermont's former Code of Professional Responsibility. Vermont's later Rules of Professional Conduct applied to conduct after September 1, 1999, as the rules history states. Treat the opinion as historical context and verify current rules and plea procedures before relying on it.
Common questions
Q: Did the client or lawyer decide whether to enter a plea?
A: The opinion called the plea decision the defendant's exclusive prerogative and required the lawyer to explain the waiver's consequences.
Q: Could the lawyer recommend the proposed full-discussion provision?
A: No. The committee said that provision could waive privilege and imply that the lawyer had fulfilled all obligations to the client.
Q: Could counsel sign one of the proposed attorney certificates?
A: The committee found signing any of the three versions ethically improper because the certificate could reveal protected information and be used against the client's later challenge.
Background and rules framework
The opinion applied former DR 4-101 on confidences, DR 6-102(A) on limiting malpractice liability, DR 7-101 on client interests, and DR 1-102(A)(5) on conduct prejudicial to justice. It cited Model Rule 1.4(b) on explaining matters to a client.
Citations and references
Rules of Professional Conduct:
- Vermont Code of Professional Responsibility DR 4-101, DR 6-102(A), DR 7-101, DR 1-102(A)(5)
- Model Rule 1.4(b)
Other opinions cited:
- Vermont Opinion 91-7, client declarations and limits on lawyer liability
See also
Source
- Landing page: Vermont Bar Association disclosure opinions
- Original PDF: Opinion 99-02
- Vermont Supreme Court rules history, “These rules apply to lawyer conduct after September 1, 1999.”
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