Brian Banks’ Lawyer’s Dilemma: The Ethics of Counselling An Innocent Client To Plead Guilty

Would Wanetta have eventually admitted her lie if Brian Banks had been sentenced to 40 years? Would you bet your life on it?

The understandable uproar over Brian Bank’s five year imprisonment for a rape he never committed has focused public attention on the wrenching situation where a criminal defense attorney feels he must counsel an innocent client to plead guilty (or no contest, in Banks’ case) when the only alternative appears to be conviction at trial and a harsher sentence.  Banks’ attorney persuaded him that five years for a crime he didn’t commit was preferable to a maximum of 40 years if he was found guilty.  Was that bad advice? Was it unethical advice?

In Canada, the ethics rules  do not permit a lawyer  to counsel a client to plead guilty to a crime unless the client can honestly state that he or she performed the criminal act with the requisite state of mind to constitute a criminal offense. Lawyers in the U.S. aren’t allowed to counsel their clients to lie either, which would seem to rule out a strategic guilty plea to lesser charges or in response to the incentive of a reduced sentence, unless the client truly did the deed. The American legal ethics system acknowledges, however, that the first job of a lawyer is to give the client the benefit of his or her legal expertise and judgment. If the lawyer doesn’t think a “not guilty” verdict is likely, the client has a right to know it. If the only way a criminal defendant client can avoid a long prison sentence or an execution is to admit to a crime he didn’t commit, he has a right to know that as well, and to base his actions on that information. It is not unethical for a lawyer to help a client determine the best way to navigate the criminal justice system. A similar dilemma occurs in the parole process, when a prisoner wrongly convicted is asked to express remorse and an acknowledgement of guilt for the crime he didn’t commit  as a condition of being granted early release. Should the prisoner’s lawyer advise his client to lie to the parole board to achieve the greater justice, or to sta truthful and adamant in his claims of innocence, resulting in longer imprisonment? This kind of dilemma is one of the reasons I abandoned criminal law, but yes, I would advise my innocent client to admit guilt, after making sure he understood that this would have unpleasant consequences too.  It’s his life, and his choice.

Advising an innocent client to plead guilty can be necessary to serve the best interests of the client. Was it in Banks’ case? So far, I haven’t seen evidence to the contrary. Sometimes lawyers advise pleading guilty in winnable cases because they are lazy, or because their judgement of the likelihood of conviction is mistaken, or because they just aren’t very competent lawyers. Then again, the assessment of whether a criminal defense will prevail has to be based on the skills of the rlawyer handling the case, not a theoretical, best possible lawyer. It would be absurd for the defense lawyer to say, “Yes, I think Clarence Darrow, F. Lee Bailey, Perry Mason or Denny Crane could get an acquittal from this jury, so let’s plead innocent and go to trial!” The question the lawyer has to answer is, “Can I get an acquittal, and if I can’t, is there another lawyer my client could hire who could?” If the answer is no, and the prosecutor offers a plea bargain, it might be an offer the client can’t afford to refuse.

Obviously, a prosecutor should never use a plea bargain offer to persuade a defendant to plead guilty if the prosecutor doesn’t believe the defendant is guilty. Let’s assume that this was true of Banks’ prosecutor: he believed the lying rape victim, and didn’t want to drop the charges. He also wanted to make sure that Banks served time for the rape; people should not get away with rape, after all. His tactic, therefore, right out of the “Law and Order” playbook, was to over-charge, and perhaps make an inexperienced or gullible defense attorney believe his case was stronger than it was. Dangling the sword of 40 years in jail and a lost lifetime over the head of a teenager, the prosecutor says, “Look…I’ll give you a break. Save the state the cost of a trial and plead guilty, and you can be out of jail in 5 years. You’ll still be a young man; you’ll have time to turn your life around. Or you can roll the dice, but I’m telling you, the victim is very persuasive, and I think the jury will believe her.”

In a comment on the Legal Ethics Forum, Patrick S. O’Donnell quotes from William J. Stuntz’s  book, “The Collapse of American Criminal Justice.

“In the inevitably selective business of criminal punishment, selections are often made on perverse criteria. The lack of careful investigation that characterizes most felony prosecutions virtually guarantees that a significant number of innocent defendants are pressured to plead to crimes they did not commit. And within the much larger universe of guilty defendants, those who are punished most severely are often those who made the worst deals, not those who committed the worst crimes.”

The justice system only works if there are coherent and fair laws, competent and sufficiently funded law enforcement investigation, fair and ethical prosecutors determined to do justice rather than to maximize convictions, defense attorneys who have the dedication and skills necessary to expose a weak case and communicate it to the jury, and juries who can be trusted to take their duties seriously and who have the intelligence, perception and objectivity to weigh the evidence and come to a just verdict.  Those are a lot of opportunities for something to go wrong, which is why we come right back to the cause of the Brian Banks tragedy: a vicious young woman who placed an innocent man at the mercy of criminal justice, where a lot can go wrong, and too often does.


Pointer and Sources: Legal Ethics Forum; special thanks to John Steele, Monroe Freedman, Patrick S. O’Donnell, Alice Woolley and Richard Zitrin.

Graphic: LA Weekly

Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts. If you are aware of one I missed, or believe your own work was used in any way without proper attribution, please contact me, Jack Marshall, at

15 thoughts on “Brian Banks’ Lawyer’s Dilemma: The Ethics of Counselling An Innocent Client To Plead Guilty

  1. It seems to me that the stakes for prison are too high. The sentences are too long for the actual crimes and the prosecutors consistently over-charge defendants.

    Can juries find guilt and bring in a lower charge, or do they have to rule on the charge that is brought?

    • Usually the jury can only decide on what was charged, but sometimes the jury is allowed to choose. Casey Anthony got off because the jury wasn’t allowed to find manslaughter, rather than second degree murder, which couldn’t be proven. I think 40 years for one rape is excessive. Is 20? Would Banks have made the same deal if he was facing just 20? I think he would have, and I’m not sure rape should carry a max penalty of much less than 20 years.

      • Hmm…obviously, what I’m about to say is simply my uneducated opinion based my own selective observations…. But I don’t think it should be any more than 20. I think 8 – 20 depending on severity and circumstances. I also wouldn’t let it run concurrent with any other convictions.

    • You, the DA, police, an the lawyers need to focus on justice 1st and leave the politics out of these cases. Who was his attorney, a ex-cops wife or friend of the DA’s office when she ran for judge?

  2. Back to the original issue: I believe that what Mr. Banks did was enter a “West plea” [named for the case creating it]. I’m no lawyer but my experience is that this allows one to let the court find guilt without the defendant admitting guilt. It is usually done, as in this case, where the risk of losing in front of a jury is high and the defendant has no viable way to counter the evidence that the prosecution will present. Essentially the defendant is saying “I didn’t do it but there is no way to prove that I didn’t do it.” Its the case of choosing between bad and terrible.

    • There are other versions of these, depending on the state…another is the so-called “Alford plea.” It’s a way to plead guilty without having to say you’re guilty, but it certainly doesn’t mean, to the court, that you are innocent. It is the equivalent of a guilty plea for all practical purposes.

  3. What a political joke this all is, they have to prove your guilty not that your innocent. of an accusation. His attorney is now a judge, thats whats wrong with the justice system – right there.

  4. What happen to Banks happened to me, everything is right on the surface not hidden, but no one is willing to go against the judicial system here in Indianapolis,In. Because they work together at the same office(City County Bldg.} I spent two yrs in prison on a charge that was never filed to a crime I never committed to ninclude to years of probation. No help, no money.

  5. It isn’t the same thing but my son was involved in 2 cases with 2 different women, both of whom were after his military benefits and had kids they did not have custody of. The first was a 40 year old white woman who is a military groupie. His naievete and the isolation of the base allowed her to sucker him into a marriage which we are still trying to get the paperwork for from the state. He was collecting a pension and she wanted that money for the $30,000 she owed in back child support for 4 kids she didn’t have custody of. When he contacted and gave me authority to call his banker, the banker told me this woman had been trying to get her name added to my son’s account; the banker also stated that the document this woman attempted to use was a “Certificate of Marriage Registration” which the banker recognized was a fraud. The upshot is that my son served 5 years in prison for charges this creature and her boyfriend filed, charges that were basically tossed out except for burglary. When you read the paperwork on those charges, even his attorney laughed because my son’s disability won’t allow him to climb ladders, etc.

    The most recent case involved a Guyanese immigrant who wanted marriage to get HER kid back from the state; we are not sure she’s actually a citizen either. After getting him arrested 6 times on traffic charges, she finally claimed he “broke into her home, punched her in the back and caused her to have convulsions, then cut her face deeply.” The house has an iron gate that can only be opened with a key, which he didn’t have (attorney has pictures). And her aunt was involved in this lie as well. The biggest problem: there was no medical evidence of ANY of her charges. He was attempting to move his car which was parked out front of her house and this creature was angry over his refusal to marry her and give her access to his military money. She also posted this fraudulent assault claim to his godmother on Facebook 1 hour and 3 minutes BEFORE he was arrested. NO proper investigation was ever done in this case. My son lost his car, military ID, wallet, bank cards, tablet because the cops left his car with HER! How do you leave the defendant’s property with the alleged victim?! The police reports do not back up her claim of assault; one cop said she had an old tiny scratch on her neck. She couldn’t keep her story straight every time the prosecutor interviewed her. We found evidence on the Internet that she was advertising herself on, and His identity was compromised: someone purchased a $1300 Dell computer on his name but the bank is aware of the situation. Because of this arrest, he had signed a Power of Attorney to me in both cases; the most recent POA is still active and he refuses to revoke it for his financial safety. He spent 15 months on Rikers Island; the state put HER up in a new college campus dorm, hiding her from his attorney seeking to depose her. We refused the state’s offer to serve 8 years for an assault that never happened by telling them we wanted to go to trial. 9 months later, they amended their offer to 2 years and again, we refused. I wanted her ass on that witness stand and so did he. The state did not want to take this case to trial from the beginning and continued for those 15 months to adjourn the case for various reasons when they realized there was no evidence but they wanted to hold him ‘as an example’. The girl was a proven liar but the state was complicit in this lie by holding him. It’s no accident that the prosecutor’s office is under federal investigation and this is the 3rd case in which this particular nationality has been part of fraudulent criminal cases here in NY. The law should be amended to allow suits against the prosecutors who engage in behavior to force innocent defendants to serve time for something they KNOW is based on a lie!

  6. What troubles me is that Brian Banks’ attorney at trial is not identified. Why doesn’t she come out of the shadows and discuss why she advised this young man to take a plea deal. Oftentimes cases of this sort are used by attorneys to further their careers, particularly in politics. There’s an old saying among lawyers, “If you can’t find a job, run for office.” Where is she now?

  7. The thing that is missing is the name of the prosecutor. That’s what we need, and then we need to ask him or her why there was proof beyond a reasonable doubt.

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