Criminal Defense Attorney Jailed for Advising His Client to Assert his Fifth Amendment Rights

Filed under: Criminal Law, News Tags: , by Steven F. Fairlie @ December 11, 2011

At a recent arraignment in Michigan a young criminal defense attorney was held in contempt by the Judge for advising his client to assert his Fifth Amendment rights.  The Judge questioned the defendant, during the contentious arraignment, as to his drug use,  in order to set appropriate bail conditions.  However, the defendant’s attorney advised his client to plead the fifth in order not to incriminate himself.  Upon hearing this, the Judge angrily admonished the attorney and threatened to hold him in contempt.  When the attorney politely stood his ground and continued to represent his client the Judge cited him for contempt,fined him $100, and sent the attorney to jail.  The attorney was released 4 hours later after another court issued an emergency stay of the Judge’s contempt order, which has now been appealed. 

Was the judge complying with the law or was the attorney?  The attorney, who had recently been admitted to the bar, was representing his client as he had been sworn to do by advising his client to plead the fifth so as not to incriminate himself.  This is a basic federal constitutional right that really cannot be ignored by a competent advocate, even in the face of Judicial anger.  If the attorney had allowed his client to answer the question he would not have been acting in his client’s best interest, and, while not probable, he could have been sued for malpractice as a result.  While the attorney remained professional and calm he still ended up in jail merely for asserting one of his client’s most basic rights.  It is hard to imagine how the Judge could have been right in this situation.  Please let us know by using the reply feature if you agree or disagree with our opinion. 

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