US Supreme Court grants cert to decide whether it is ineffective assistance of counsel to concede client's guilt over client's objection -- UPDATED

The U.S. Supreme Court has granted review in McCoy v. Louisiana in which a Louisiana death row inmate is arguing ineffective assistance of counsel because his lawyer conceded his guilt over the defendant's objection.  You can find all the documents related to, and more information on, the case at the SCOTUSblog here. The New York Times also has some information on the case here.

In this case, the defendant, Robert Leroy McCoy, refused his lawyer’s suggestion to accept a plea deal, and objected when the lawyer informed him he planned to concede guilt.  He also protested at trial, after the lawyer conceded guilt during the opening statement.  According to an article in the ABA Journal, "the lawyer maintained the concession was necessary because he had an ethical duty to save McCoy’s life." 

There is only one problem.  There is no such ethical duty.

The duty of the lawyer is to represent the client and this includes following the client's instructions as to the goals of the representation.

The case presents an opportunity to clarify a terrible old decision of the US Supreme Court called Florida v. Nixon.  In that case, a lawyer attempted unsuccessfully to get his client - also a death row inmate - to cooperate in preparing his defense.  The inmate, who probably had diminished capacity, either did not understand what was happening or did not wish to communicate with the lawyer.  Eventually, the lawyer decided to concede guilt in order to argue for a lower sentence at the sentencing phase of the trial.  On appeal, much of the discussion revolved around whether there is a difference between "conceding guilt" and "pleading guilty."  The distinction is important because the rules of professional conduct explicitly reserve the right to plead guilty to the client.  Simply stated the lawyer has no authority to decide whether to plead guilty without a client's consent.

In a confusing opinion, the Court found that the lawyer had not provided ineffective assistance of counsel.  Yet it is not clear whether the decision was based on either (a) that the decision was for the client to make but the lawyer could make the decision for the client because the client was incapable of communicating with the lawyer or (b) that the decision was for the lawyer to make because it was "tactical" in nature.  If the decision in the case was to plead guilty, then the Court's decision must have been based on option (a), which would be wrong under the rules of professional conduct.  If the decision was "to concede guilt" (meaning something different from pleading guilty, even if the effect is the same) then it can be argued the Court's decision was based on option (b).  

I have never been comfortable with Florida v Nixon for many reasons, the most important one of which is that I don't see the difference between conceding guilt and pleading guilty.  In the end, the Court allowed an attorney to make the most fundamental decision, which is explicitly reserved for the client to make, without client consent.

And now McCoy could be even worse.

In McCoy, the Court is being asked to take the decision in Nixon one step further and allow the attorney to make the decision over the express objection of the client based on the notion that the decision to "concede guilt" is purely tactical and, thus, can be made by the lawyer.  In fact, in affirming the lower court's decision, the Louisiana Supreme Court found no Sixth Amendment violation stating that “[g]iven the circumstances of this crime and the overwhelming evidence incriminating the defendant, admitting guilt in an attempt to avoid the imposition of the death penalty appears to constitute reasonable trial strategy.” [emphasis added.]

I did not like that interpretation in Florida v. Nixon and I like it even less here.  As explained in the amicus brief of the The Yale Law School Ethics Bureau (available here),

The decision over whether to concede guilt at trial is ultimately the defendant’s to make. It goes to the very heart of the right to put on a defense–a right that personally belongs to the accused. ... In this case, Mr. McCoy vigorously and repeatedly expressed his desire to assert innocence at trial. Yet Mr. English [McCoy's lawyer] disregarded those entreaties and readily conceded guilt . By doing so, Mr. English not only betrayed the sacred bond between lawyer and client, but also denied Mr. McCoy his personal right to put on a defense.

[Because of the egregious nature of the ethical failures in this case,] Mr. McCoy was constructively denied counsel. By conceding guilt over Mr. McCoy’s express objection, Mr. English failed to act within the scope of the attorney–client relationship. He was not, in any meaningful sense, acting as Mr. McCoy’s lawyer. Mr. McCoy therefore did not just receive an “incompetent counsel”–he effectively did not receive any counsel “at all.” ...

Additionally, Mr. English failed to subject the prosecution’s case to meaningful adversarial testing. Indeed, far from testing the prosecution’s case, Mr. English seemed downright eager to advance it. He readily conceded Mr. McCoy’s guilt in his opening statement; called Mr. McCoy to the stand only to impeach his credibility; and failed to present any evidence that challenged the prosecution’s theory of the case. ...

Relying on reasoning from the Court’s decision in Florida v. Nixon,... the Louisiana Supreme Court declined to find Mr. English’s conduct presumptively prejudicial. But Nixon only held that a lawyer is not required to obtain affirmative consent from the client before conceding guilt. It expressly did not address the situation presented here, where the client positively objects to conceding. The difference between conceding guilt in the face of a client’s non–response and his explicit objection is crucial; for it is the difference between a reasonable strategic decision based on limited information and total destruction of the attorney–client relationship.

I agree.

Another argument in the case is that the lawyer was compelled to concede guilt because the lawyer did not believe the client's story and, thus, thought the client was going to base his defense on false evidence.

Yet, the rules of professional conduct do not give a lawyer the authority to unilaterally concede a client’s guilt because the lawyer doubts his client’s claim of innocence.  Even if the lawyer believes the client intends to present false evidence, the alternative approaches to the problem provided by the rules do not include conceding guilt.

Whatever the Court decides, this will be a very important decision.

UPDATE (11/25/17):   The ABA has filed an amicus brief in support of the appellant.  As I argued in my original comment, I agree with this view.  The ABA explained its position in a press release.  You can also read the full brief here.

UPDATE (January 26, 2018):  The Supreme Court heard oral arguments on the case today.  Here are some comments and links on it.  The oral argument itself is available here.