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February 11, 2011

Should Lindsey Lohan's lawyer be talking up interest in a plea deal for her client?

Since the entertainment media provides plenty of coverage of Lindsay Lohan's legal troubles, I am disinclined to blog much about her latest criminal case (at least until it gets to a sentencing stage).  However, this piece from CNN, which is headlined "Lindsay Lohan would consider a no-jail plea deal, her lawyer says," prompts the legal ethics question in the title of this post.  Here are the factual basics:

Lindsay Lohan will consider a plea deal on the charge that she stole a necklace from a jewelry store if she can avoid going to jail, her lawyer said Thursday.  Attorney Shawn Chapman Holley insisted, though, that the grand theft charge is "entirely defensible."

The actress entered a not guilty plea in the case Wednesday before Los Angeles County Superior Court Judge Keith Schwartz, but the judge immediately revoked her probation related to a 2007 drunk driving conviction.

"Ms. Lohan maintains her innocence, and now that I've seen the police reports, I believe the case is entirely defensible," Holley said.  "Having said that, we will entertain a discussion concerning a plea if it means no jail so that she can move forward with her recovery and her career."

Lohan was allowed to post bond on the theft charge and the probation revocation after a short hearing Wednesday.  Schwartz will hold a hearing February 23 to decide if the theft charge warrants sending Lohan back to jail immediately on a probation violation.  The court date will also be used to consider a possible negotiated resolution to the theft charge, he said.

Lohan's lawyer should, of course, be talking to her client and to prosecutors about resolving the changes against Lohan through a plea.  But should she be talking up a plea deal to the media?  Beyond the question of whether such public discussion of a plea is a good negotiating strategy, I would like to hear from experienced practitioners whether they believe this attorney's public plea deal talk is ethically kosher.

February 11, 2011 at 08:12 AM | Permalink

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Comments

Doug: Stick with your disinclination.

Posted by: alan chaset | Feb 11, 2011 9:05:19 AM

Lohan wouldn’t be the first celebrity defendant whose lawyer has gone on the interview circuit. Obviously, no lawyer should be publicly discussing a client’s case unless the client has agreed.

The ethical question, in my mind, is whether Lindsay Lohan has the maturity to understand the consequences of allowing her lawyer to attempt to negotiate a plea bargain through the media.

Posted by: Marc Shepherd | Feb 11, 2011 9:08:58 AM

It's "her client."

Reminds me of the old joke with the punchline "Doctor, I can't operate on this man, he's my son!" (although not really in this case, because it probably wasn't soley the designation "lawyer" that led to assumption the person in question was male, but the predominately male name "Shawn")

Posted by: FYI | Feb 11, 2011 11:32:07 AM

Ms. Chapman Holley is a woman.

Posted by: Legal Writing | Feb 11, 2011 12:24:35 PM

Ms Lohan is in bad need of some help...6 months in the cross bar hotel, would do wonders for her..

Why let her build up history before they straighten her up...As talented as she is and young, she will have many tries....Sad to say she is going to need them, as she is failing and a few slips in the wrong direction could be very costly..

Posted by: Josh | Feb 11, 2011 1:55:09 PM

The main thing Ms. Lohan's lawyer needs is a different client.

Posted by: Bill Otis | Feb 11, 2011 2:10:11 PM

Thanks to commentors for making sure I got the gender of Lohan's lawyer correct!

Posted by: Doug B. | Feb 11, 2011 2:14:54 PM

I am a criminal defense appellate practitioner.

I would be uncomfortable discussing a plea deal in public, for a variety of reasons. If the deal falls through and you have to try the case, this has a high potential to poison the jury pool. Plus, just in terms of getting a favorable deal or any deal, does not it put the DA on the spot? I am sure there are a few other reasons to do it rarely, if ever.

On the other hand, I toil in the appellate courts, so my familiarity with the plea bargaining process is second-hand. It would really be interesting to hear the trial attorneys' perspective, particularly if it on something other than the proper gender of Ms. Lohan's defense counsel.

In terms of ethics, so long as the client gives her INFORMED consent (meaning her lawyer explained to her in plain English all the pros and cons of this approach), I don't see a problem.

Posted by: Gene | Feb 12, 2011 1:59:06 AM

Nor is she Irish. She is married to this lucky man:

http://www.dorianholley.com/

This is what is truly appalling, sickening and disgusting.

Assume the hypothetical that a lawyer has committed legal malpractice.

One must prove the usual standards of torts, deviation from professional standards, damage, no unforeseen intervening cause, and a chain of causation between the malpractice and the damage.

Say one has done that.

One must then retry the original case, to prove the outcome would have been different had the malpractice not taken place.

Say, one proves the malpractice and the different outcome of the original trial.

One must overcome the litigation privilege, a self-dealt common law fix saying the lawyer may use his judgment in litigation, however wrong it is.

Say, one overcomes this insurmountable obstacle to accountability of the careless lawyer.

One must prove that one could have collected from the original defendant in torts or over the prosecutor in a criminal trial.

In real life, the careless lawyer has nearly absolute immunity in torts. The careless prosecutor has absolute immunity in torts under several Supreme Court decisions.

If torts liability is a substitute for violence, then its obverse must be true, immunity justifies violent self-help.

This is not just unfair, immoral, but ethically disgusting.

Posted by: Supremacy Claus | Feb 12, 2011 10:33:40 AM

Me and the Claus are producing a movie together, so I love the Claus. But what's up with the Irish thing?

Posted by: Matt | Feb 12, 2011 10:49:43 PM

What's up with American black folks giving girl babies male names, misspelling names (it's Brittany, not Brintney; it's Antoine, not Antwine), and using Arabic names, the biggest slavers of black folks in both history and still today? They upset about something?

Posted by: Supremacy Claus | Feb 13, 2011 1:08:25 PM

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