Ethics and the Law: Who Is Running This Show? - By Robert Pelton

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Thursday, July 26th, 2018

When I worked at a printing shop in Abilene, Texas, customers would come in and order posters, business cards, and circulars for sales events at grocery and department stores.

One day, a traveling salesman came in and ordered 500 8 x 10 cards that read “The Boss May Not Always Be Right, But He Is Always the Boss.” The salesman gave them out to the customers he called on. Almost every small business in Abilene had one.

The client may not always be right, but he is always the client. Right or wrong, the client makes the final decision on the following:

1.   Plea of guilty or plea of not guilty
2.   Court trial or jury trial
3.   Whether to testify or to not testify
4.   If the verdict is guilty, who decides whether it goes to a judge or the jury for punishment
5.   Whether to file a motion for a new trial or appeal
6.   Whether to concede guilt.

To save headaches down the road, the better practice is to get all these things documented by having the client sign.

Example: I am Perry Mason, accused citizen, and my lawyer, Matlock, has advised me I have a right to decide whether or not to testify. I understand this and I want to (testify) (not testify).

Another issue—the decision to call or not call certain witnesses—leads to some polite disagreement. Below are comments from members of the Ethics Committee:

I think the “to call witnesses or not call witnesses,” standing alone, invades the province of the attorney’s duties to the client. I would modify it as “calling witnesses if doing so affects whether the client pleads guilty or admits guilt.” In other words, the client has the right to not call Witness A because A may state on the record that client is guilty. Obviously, an attorney should call a material and relevant witness provided that witness does not harm the client’s case. But, if the power to call any witness were up solely to the client, the client may insist that you call up to (or more than) 20 witnesses that are cumulative to 5 other witnesses. Or, witnesses who have have nothing relevant to say. Or worse, witnesses who will damage the defensive theory. Allowing clients such unfettered power may serve to only harm the client’s case.

—Michael Mowla

Besides adding that the attorney cannot concede guilt over the objection of his client, I would remove calling witnesses and whether to file a motion for new trial. The client has no veto power over whether (or who) I call as a witness and whether I think it serves him to file a motion for new trial. However, if the client wants to appeal, I have no discretion—that’s his call. Whether to withdraw after sentencing—it depends. I generally don’t like to step away unless my soon-to-be-former client is in someone else’s hands.

—Keith S. Hampton

An article by Mark Walsh in the July 2018 issue of the ABA Journal deals with the most serious example of a lawyer and client disagreeing on strategy and a recent Supreme Court case about conceding guilt.

As Mark wrote:

The May 14 decision in McCoy v. Louisiana looked to English common law, the American Bar Association’s Model Rules of Professional Conduct, and the court’s own precedents for its holding. The Sixth Amendment, the court said, guarantees a defendant the right to choose the objective of their defense and to insist that their lawyer refrain from admitting guilt, even when the lawyer’s view, based on experience, is that confessing guilt provides the defendant the best hope to avoid the death penalty.

        Writing for a 6–3 majority, Justice Ruth Bader Ginsburg said, “with individual liberty—and, in capital cases, life—at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage or to maintain his innocence, leaving it to the state to prove his guilt beyond a reasonable doubt.”

In the case, where a jury found the defendant guilty of first-degree murder, McCoy refused to plead guilty by reason of insanity in an attempt to avoid the death sentence. In the Supreme Court decision, Justice Ginsburg wrote of the defendant’s right:

Ginsburg, in an opinion joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan, stressed that trial management on matters such as what arguments to pursue and what objections to raise “is the lawyer’s province.” But some decisions “are reserved for the client—notably, whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf and forgo an appeal.”

        “Counsel may reasonably assess a concession of guilt as best suited to avoiding the death penalty, as English did in this case,” Ginsburg said. “But the client may not share that objective. He may wish to avoid, above all else, the opprobrium that comes with admitting he killed family members. Or he may hold life in prison not worth living and prefer to risk death for any hope, however small, of exoneration.”

        The court held that the error in McCoy’s case was structural, and thus he must be granted a new trial. Ginsburg cited, among other things, ABA Model Rule 1.2(a) that says a “lawyer shall abide by a client’s decisions concerning the objectives of representation.”

Check out the July issue of the Journal for further details—and for a further read on the rights of a defendant in determining trial strategy.