Let’s start with the commonly accepted preposition that our clients are, by and large, incapable of finding their backsides with both hands, a map, and a native guide. Whether the client be the sweet little old lady from down the street or the meth dealer who’s been the scourge of the Shady Acres Mobile Home Community for the last three weeks before he fell behind on his rent, clients are collectively idiots without a single clue as to what’s in their best interests. It isn’t even their fault, really. As a society they’re trained to second guess people by television shows that teach them nice, and ultimately meaningless, phrases like “post hoc ergo propter hoc” that they can parrot back at the nice man or woman in the suit in front of them and make demands.
We live, ladies and gentlemen, in the Golden Age of Dipshittery, where any asshole with access to Google and a cable subscription can fancy themselves a lawyer. All hail King Dipshit, as he wanders into the office and proceeds to immediately second-guess the attorney. And, of course, because we learn the law from folks whose names are preceded by words like “Professor,” we of course have the vitriolic reaction of any learned professional when T-Bone tells us he totally thinks we should argue he was driving that ATV through the nunnery because aliens told him to: Sit down, shut up, I’m the goddamn lawyer.
And so, today and Wednesday, we’ll talk about the division of decision-making between an attorney and their client, i.e., who has control over what and when in an attorney-client relationship.
But…but…even though the attorney may know best, can we ethically ignore the suggestions, and in some cases, the flat-out demands of our clients? I mean, this was the question up in front of the Supreme Court of the United States last week in McCoy v. Louisiana, a case where an attorney, against the wishes of his client, told the jury his client was definitely fucking guilty of murder. So let’s start there.
…The Lawyer Did What?
Yeah, okay, here’s the quick and dirty cause that really makes it sound like the guy’s lawyer, Larry English, went all vigilante and stood up to start screaming “This son of a bitch is guilty! Fry him! Fry him like a Snickers at the State Fair!”
Which didn’t happen. The truth is a lot less shocking, unless you’re a lawyer. McCoy was accused of murder, and every bit of evidence indicated that he did it. I mean, every bit of evidence. All they were missing was a videotape of him doing it. However, McCoy genuinely believed he was being framed for murder, and instructed his lawyers that, under no circumstances, were they to admit to his guilt. This led to McCoy losing public defenders before his family hired English to represent him. English, an experienced defense attorney, reviewed the case, investigated McCoy’s leads, and determined that his client had definitely fucking done it, or at least that the evidence was so great there was no possible way a jury wouldn’t convict.
Which was an issue. Because the death penalty was on the table. So, English, in looking at the facts, determined there was no way to get McCoy acquitted, and the best case scenario was to avoid the death penalty. So he devised a strategy wherein he would immediately tell the jury that McCoy committed the crime, but then try to show McCoy to be mentally ill in an effort to avoid the death penalty. McCoy…was not happy about this, but the court wouldn’t let him switch lawyers, and English followed the strategy at trial.
Newsflash: It didn’t work, and McCoy was convicted of murder and sentenced to death. And now he was pissed because not only was he gonna die, but his lawyer had made the decision, against McCoy’s wishes, to essentially admit guilt.
And so began the appeals.
That…Sounds Fucking Horrible.
Yeah. Yeah it does, doesn’t it? I mean, the trained professional substituting his or her judgment for your own when you’re the guy who’s ignoring the weight of the evidence so you can march your happy ass to the death chamber and they’re trying to find a way to save your fucking life?
What a monster.
Dude, you’re being elitist as fuck.
I know, I know. I’m sorry, and I’m gonna tell you why it does here in a second, but let me give you the completely fucking accurate quote from the oral arguments in McCoy, as expressed by Mr. McCoy’s own counsel in front of SCOTUS last week:
“[C]lients. . . all the time do things that make counsel’s job either difficult or impossible.”
And that’s true. If you want to truly and completely let a case get fucked up, guys, let your clients dictate everything in it and do nothing but be a licensed conduit for them to inflict themselves on the court. Also, if you do that, let me know how much you enjoy disbarment, because letting a client run rampant over the court system is a fast fucking way to violate your professional responsibilities.
Are you about to say you have an ethical duty to ignore your clients?
No, but I am about to say that, ethically, you have a duty to not let your client drive the fucking bus off the cliff.
As lawyers we have a Code of Professional Conduct, and while the code may be different for each state, most states follow the basics of the American Bar Association’s Model Rules of Professional Conduct in determining just how much of a shit bag an attorney can be about stuff. Among these rules is Model Rule 1.2(a), which states, in part, as follows:
Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.
Now, here’s how I describe this to clients when they come in my office:
“Alright, it works like this: we’re on a road trip. You’re going to pick where we’re going, but I’m going to decide how to get there. From time to time, I’m going to present you with a couple of options on what route we’re taking, and I’m going to ask you which one you want me to take and tell you which one I think you should take. But otherwise, you give me the destination, and I drive the goddamn bus. You will never touch the fucking wheel.”
“Also, from time to time I’m going to ask you to pay for gas, and you damn well better pay for the gas or I’m getting out of the car and leaving you in a cornfield in the middle of Nebraska.”
In a much more professional way, we phrase it as follows: “The client chooses the ends, the Attorney chooses the means to them.”
Even on Guilty Pleas and Shit?
Oooooh, see, there’s the difference isn’t it? Alright, there’s a part of Rule 1.2(a) that I intentionally left out. It’s all the way at the bottom, and it states as follows:
In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
Alright, so let me be clear: in a criminal case the client can demand that they get the wheel to the bus and plummet it directly over the cliff in three areas: how to plead, whether they get a jury, and if the client will testify. This means a criminal defendant gets to say shit like “I don’t care what you say, you enter a goddamn not guilty plea” or “Nope, I’m taking the stand!” And in the context of a criminal case, this can put the lawyer in a really bad position, because attorneys in criminal matters can’t withdraw from representation without leave of the court.
I mean, attorneys in civil matters can’t either, but trust me when I say the court is a hell of a lot more lenient when considering whether to let a civil lawyer off the hook than they are about letting a criminal attorney stop representing the guy who’s insisting, against all advice, to take the stand in his own defense.
And trust me, lawyers do give this advice. “Do not testify.” “You should take this plea, if we go to trial on these facts they’re going to convict and you’ll be getting a much worse deal.” “A jury is going to kill you, we want to make an argument of law, and we need to make those before the judge.” Those are all statements a lawyer may make to try to convince their client to do the smart thing in a criminal matter, but if the client tells the lawyer to fuck off, the ultimate say is the client’s.
Here the Client Told the Lawyer to Fuck Off
For murder to exist you have to have a mens rea and an actus reus. Translated out of “Fucking dead language” to English, that’s the appropriate state of mind and the criminal act. In McCoy, the attorney believed that his client may be able to prevail on the theory that he lacked the necessary state of mind to commit murder because his client was mentally deficient (insane). Accordingly, his client couldn’t be guilty of first-degree murder, because the client had diminished capacity. However, the client didn’t want to concede diminished capacity and was adamant that the defense should focus on countering the overwhelming evidence that the client actually committed the murders, the actus reus.
It’s complicated, but essentially the client was controlling the plea of not guilty of first-degree murder (which was punishable by the death penalty), but not the reason he wasn’t guilty of it. The client says he wasn’t guilty because he didn’t do it, and the attorney’s strategy was he wasn’t guilty because he lacked the necessary mental capacity to have formed the requisite intent to commit first-degree murder.
Do you see the issue here?
No. Because the lawyer said he fucking killed people.
Yeah, but…alright. So there’s a general rule that, outside of things like pleas, jury trials, and defendant testimony (in criminal matters), the rest of what happens at trial is trial strategy. The technical and strategic details of a case are, traditionally and reasonably, the sole domain of the attorney, not the client. In other words, if I decide not to call a witness you want me to call because I think their testimony will be incredibly detrimental to your case, that’s my fucking call because I’m the expert. I may, and likely will, consult with you regarding this decision and explain why I’m not going to call Jimmy the One-Eyed Hitman to testify on your behalf, and hopefully that will resolve the matter, but at the end of the day it’ll be my call. If you don’t like it, then you’re free to seek out another attorney or go it alone (so long as the court will let you), because you don’t get to force the lawyer’s hand.
In this case, the attorney and client were on the same page with the “not guilty” plea, but differed on how to prove it. And that’s where the Supreme Court focuses a lot of their questions: does the client’s ability to control the plea extend to forbidding the attorney to admit any element of the offense to the jury? Is it a question of mere trial strategy, such that it’s traditionally in the exclusive domain of the attorney, or is it a question of guilt so extreme that the client should be allowed to direct the determination?
Especially when taking the client’s view of things, in the opinion of the attorney, means that the client will likely get a death sentence.
Of course you’re taking the lawyer’s side.
No, not really.
Because we’re not always right.
But at the same time, nothing prevented the client from getting on the stand and giving his version of events. And nothing prevented the client from demanding that he be allowed to do so.
Indeed, he did actually present his version of events to the court.
But if you read the facts and procedural history from the Louisiana Supreme Court’s decision, it becomes readily apparent why English may have said “you will never win on an argument that you weren’t there and didn’t do it. Our best chance is to get you off or a lesser charge by claiming you weren’t able to control yourself.”
And in this case it raises another ethical quandary: Where the client is facing severe consequences and refuses to acknowledge the advice of counsel, and counsel honestly believes based on their knowledge and experience that they client may be able to ameliorate or avoid those consequences by following a certain trial strategy, at what point can counsel ignore the client’s desire not to present that strategy?
And, indeed, at what point is it unethical for the attorney to follow the wishes of a client to the letter? Had Mr. English presented the defense McCoy wanted to present and McCoy still been convicted and sentenced to death, would we be facing a different appeal for failure of counsel to adequately represent the client?
…This is where you tell us to look at it next time, right?
It’s gone on 2,200 words now. I’m not typing a dissertation today.
But Wednesday, we’ll talk more about what we’re supposed to do when a client and attorney disagree over matters in the course of representation.
But for now…I got shit to do.