Do you need a reminder of your ethical duties when dealing with a client with diminished capacity?

If you need a reminder of your ethical duties when dealing with a client with diminished capacity, a recent post in Lex Blog has you covered.  You can read "Ethical Considerations for Lawyers When Responding to Clients With Cognitive Decline" by Laura Bagby by going here.

ABA Committees solicit comments on discussion draft document on possible amendments to the Model Rules

The ABA Standing Committees on Ethics and Professional Responsibility and Professional Regulation have developed a Discussion Draft of possible amendments to the Comments of Model Rules of Professional Conduct 1.0 (Terminology), 1.1 (Competence), and 1.2 (Scope of Representation and Allocation of Authority between Client and Lawyer). The amendments contained in the Discussion Draft provide guidance on lawyers’ client due diligence obligations under the ABA Model Rules of Professional Conduct.  The Discussion Draft is available here.

The Committees have not yet decided whether to present any Model Rule amendments on this subject to the House of Delegates. Your comments will assist the Committees in determining whether and how to proceed.  

You may provide comments in one of two ways:

First, the Committees will host a roundtable discussion on Friday, February 11, 2022, from 1:30 to 3:30 p.m. at the Grand Hyatt Seattle, 721 Pine Street (room location forthcoming in January 2022). If you would like to comment at this roundtable, please RSVP to Natalia Vera (Natalia.vera@americanbar.org).

Second, you may communicate your thoughts and suggestions by providing written comment to the Committees.  Written comments on the Discussion Draft must be submitted by email to Natalia Vera by February 15, 2022.  Please note that the Committees may post your written comments on the ABA website.

ABA issues new formal opinion on the duty of communication with a client when the attorney and client have difficulties understanding each other -- UPDATED

 The ABA Standing Committee on Ethics and Professional Responsibility recently issued a new Formal Opinion (No. 500, October 6, 2021) on an attorney’s duty to communicate with a client when the lawyer and client have difficulty understanding each other.  The summary of the opinion reads as follows:

Communication between a lawyer and a client is necessary for the client to participate effectively in the representation and is a fundamental component of nearly every client-lawyer relationship. When a client’s ability to receive information from or convey information to a lawyer is impeded because the lawyer and the client do not share a common language, or owing to a client’s noncognitive physical condition, such as a hearing, speech, or vision disability, the duties of communication under Model Rule 1.4 and competence under Model Rule 1.1 are undiminished.  In that situation, a lawyer may be obligated to take measures appropriate to the client’s circumstances to ensure that those duties are capably discharged. When reasonably necessary, a lawyer should arrange for communications to take place through an impartial interpreter or translator capable of comprehending and accurately explaining the legal concepts involved, and who will assent to and abide by the lawyer’s duty of confidentiality. The lawyer also should use other assistive or language-translation technologies, when necessary. In addition, particularly when there are language considerations affecting the reciprocal exchange of information, a lawyer must ensure that the client understands the legal significance of translated or interpreted communications and that the lawyer understands the client’s communications, bearing in mind potential differences in cultural and social assumptions that might impact meaning.

You can read the full opinion here.   

Ethical Grounds has a comment on the opinion here.  The ABA Journal has a story here.

UPDATE 10/30/21:  The Legal Ethics Advisor has a comment on the opinion here.

Breaking news: Trump's legal team quits just days before impeachment trial! -- UPDATED

 January 30, 2021

Just days before his impeachment trial is set to begin, Donald Trump's entire new legal team has withdrawn from his representation.  According to one report, they left because Trump “wanted the attorneys to argue there was mass election fraud and it was stolen from him rather than focus on proposed arguments about constitutionality.”  Whether the lawyers objected to this specifically because they thought the arguments are frivolous is not clear, but, evidently, they felt the disagreement was important enough to withdraw from representation.  

Given that so many other lawyers and law firms withdrew from representing Trump in litigation over the elections after it was clear that the cases had no merit, the news of a new group of lawyers withdrawing is not entirely surprising.  

Trump now has a little over a week to find a new legal team to build a defense.  One report suggested Trump thinks the case is "simple" and that he could represent himself, which apparently is something that Steve Bannon is suggesting he should do.  Others have denied that Trump is considering representing himself. Stay tuned!

For more on the story, including quotes from the reporters who interviewed the original sources, and from the lawyers involved go to Law & Crime, Politico. Yahoo! News and the New York Times.

Interestingly, it is not clear who disclosed that the reason for withdrawing was a disagreement over what to argue as part of the defense strategy.  If it was the lawyers, it raises a question as to whether they have violated their duty of confidentiality which depends on whether they had consent to disclose the information.  Lawyers do not have to explain their reason to withdraw, unless they are seeking permission from the court to do so (which is not the case here), and even in that case, lawyers should not disclose more information than reasonably necessary.  

But when it comes to Trump, some lawyers want to distance themselves from the client so much that they suddenly feel the need to explain themselves on the way out.  For another example of this, remember the lawyer who filed a motion to withdraw stating in the motion that Trump had committed a crime.  See here.

UPDATE, Sunday 1/31/21:  Trump has announced a new team of two attorneys who will represent him in the impeachment trial.  For more, see Courthouse News, Law & Crime, NPR, the New York Times and Politico.

UPDATE, 2/1/21:  Above the Law has a comment on the withdrawal of the original team here.

ABA issues new ethics opinion on the duty not to counsel clients about, or assist in, committing a crime or fraud

At the end of April, the ABA's Standing Committee on Ethics and Professional Responsibility issued a new Formal Opinion (No. 491) titled "Obligations Under Rule 1.2(d) to Avoid Counseling or Assisting in a Crime or Fraud in Non-Litigation Settings." You can read the opinion here.

In my humble opinion, it does not add much that we did not know already but it is always nice to have guidance on important questions.  What it does, perhaps without realizing it, is provide support for an argument with regard to a number of other duties -- more about that below.  Here is the summary of the new opinion:

Model Rule 1.2(d) prohibits a lawyer from advising or assisting a client in conduct the lawyer “knows” is criminal or fraudulent. That knowledge may be inferred from the circumstances, including a lawyer’s willful blindness to or conscious avoidance of facts. Accordingly, where facts known to the lawyer establish a high probability that a client seeks to use the lawyer’s services for criminal or fraudulent activity, the lawyer has a duty to inquire further to avoid advising or assisting such activity. Even if information learned in the course of a preliminary interview or during a representation is insufficient to establish “knowledge” under Rule 1.2(d), other rules may require the lawyer to inquire further in order to help the client avoid crime or fraud, to avoid professional misconduct, and to advance the client’s legitimate interests. These include the duties of competence, diligence, communication, and honesty under Rules 1.1, 1.3, 1.4, 1.13, 1.16, and 8.4. If the client or prospective client refuses to provide information necessary to assess the legality of the proposed transaction, the lawyer must ordinarily decline the representation or withdraw under Rule 1.16. A lawyer’s reasonable evaluation after inquiry and based on information reasonably available at the time does not violate the rules. This opinion does not address the application of these rules in the representation of a client or prospective client who requests legal services in connection with litigation.

Now, why do I think that this opinion is important for rules not mentioned in the opinion?  Because it addresses the duty of the lawyer to act to "find out more" when the duty is expressed in a rule that takes effect if the lawyer has "knowledge."  Model Rules 1.9(b), 1.10(a), 1.13(b), 4.1 and 8.4(f) are all based on knowledge, for example.  

When I teach the duties related to perjury we discuss the notion of selective ignorance and how much investigation a lawyer has a duty to do before being able to claim they did not "know" something, given that knowledge is a subjective state of mind but can be proven with objective evidence of the circumstances.  This opinion provides some guidance on that issue.

[By the way, before anyone writes to me about this, No, Rule 8.4(g) is not based on knowledge.  8.4(g) is based on a negligence standard. Read it carefully.  So is 3.6.]

UPDATE: 1/18/21:  Louisiana Legal Ethics has a comment on the opinion here.

Supreme Court adds to the definition of ineffective assistance of counsel

The US Supreme Court recently held (in a 6-3 opinion) that a lawyer renders ineffective assistance of counsel when he or she decides not to file an appeal of a guilty plea despite his client’s request, even if the client waived his right to appeal in the plea agreement.  The case is called Garza v. Idaho, and you can read the opinion here.  You can also find all the relevant documents in the case here.

I haven't had a chance to read the opinion myself, so I will limit the post to a link to this summary and analysis.

US Supreme Court finds for inmate in claim of ineffective assistance of counsel

The US Supreme Court announced a decision today in which it expanded the notion of ineffective assistance of counsel.  The court ruled for Gilberto Garza Jr., who waived his right to appeal in two plea agreements, then changed his mind and told his lawyer to file an appeal.  The lawyer did not file the appeal notice because of the waiver, and the deadline passed. In a petition for post-conviction relief, Garza argued that his lawyer had provided ineffective assistance.

To prove ineffective assistance, defendants must show that their lawyer’s representation fell below an objective standard of reasonableness, and that the deficiency was prejudicial to the defense.

The issue in the case was whether Garza was entitled to a presumption that his lawyer’s failure to file the notice caused prejudice, a presumption that had been recognized in a 2000 case in which there was no appeal waiver.

Idaho courts had ruled against Garza, finding that he could not make the necessary showing that the deficient performance at issue resulted in prejudice.

Reversing that ruling, the Supreme Court ruled 6-3 that this requirement goes against the rule that prejudice to the defendant should be presumed “when an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued.”

The ABA Journal has a story here.

Courthouse News Service has a story here.

Louisiana Supreme Court reverses conviction applying McCoy v Louisiana (in which the US Supreme Court had reversed the Louisiana Supreme Court)

As you may recall, back in May the US Supreme Court issued its opinion in McCoy v Louisiana, an eagerly awaited case on whether an attorney has the authority to concede a client's guilt in order to seek leniency at sentencing.  The Court held that the attorney did not have such authority and that because he acted against the client's will, the conduct constituted a reversible error.  For reasons I discussed elsewhere, I consider McCoy to be only a partial victory, but that is another story you can read about here.

In McCoy, the Louisiana Supreme Court had held that the attorney's concession of guilt had been a tactical decision within his authority; but the US Supreme Court held that type of decision related to the objective of the representation and therefore belonged to the client and reversed.

Now comes news that the Louisiana Supreme Court learned the lesson and has reversed a conviction in a new case that presented the same issue.  The case is called Louisiana v Horn and you can read the opinion here.

The Legal Profession blog has a summary here.

Supreme Court decides McCoy v Louisiana

Last year I posted comments on a case then before the Supreme Court which I thought was important on the issue of client autonomy and allocation of decision making authority within the attorney-client relationship.

The case was decided back in May but I hadn’t had a chance to read the decision yet.  Well, I just finished reading it, and I am happy to report that it was decided just like I suggested it should.  Here are my initial thoughts.

First, a little background.  The case is McCoy v. Louisiana in which a defendant in a capital murder case appealed his conviction arguing ineffective assistance of counsel based on the fact that 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 relevant facts of the case are as follows.  Two weeks before trial, the defendant’s lawyer (Larry English) told his client, McCoy, that he thought the evidence against McCoy was overwhelming and that, absent a concession that McCoy was the killer at the guilt stage, a death sentence would be impossible to avoid at the penalty phase.  English, therefore, decided to concede that McCoy committed the murders in an attempt to convince the jury not to impose the death penalty.  McCoy did not agree, and told English not to make that concession. Instead, McCoy wanted English to emphasize his defense based on an alibi - a story that English did not believe was true. Based on their disagreement, McCoy asked to court to terminate English’s representation but the court refused.

At the beginning of his opening statement at the guilt phase of the trial, English told the jury that McCoy killed the victims.  McCoy objected and addressed the judge outside the presence of the jury.  Yet, the judge reminded McCoy that he was being represented by English and told him that “the court would not permit any other outbursts.”  In his closing argument, English again reiterated that McCoy was the killer.

After he was convicted and sentenced to death, McCoy unsuccessfully moved for a new trial, arguing that the trial court violated his constitutional rights by allowing English to concede McCoy committed three murders over McCoy’s objection. Then, on appeal, the Louisiana Supreme Court affirmed the trial court’s ruling because, according to the court, counsel reasonably believed that admitting guilt afforded McCoy the best chance to avoid a death sentence.

The Louisiana Supreme Court also concluded that English’s refusal to maintain McCoy’s innocence was necessitated by Louisiana Rule of Professional Conduct 1.2(d), which provides that “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent” because, according to the court, presenting McCoy’s alibi defense would have forced English to violate his duty against presenting false evidence.

In holding the way it did, the Louisiana Supreme Court did not follow the analysis of three other state Supreme Courts that have addressed the same issue.  (See, Cooke v. State, 977 A.2d 803 (Del. 2009), State v. Carter, 270 Kan. 426, 14 P.3d 1138 (2000), and People v. Bergerud, 223 P.3d 686 (Colo. 2010), all of which held that although defense counsel is free to develop defense theories based on reasonable assessments of the evidence, counsel cannot usurp the fundamental choices reserved for criminal defendants.

The US Supreme Court granted review to solve the division of opinion among state courts and agreed with the majority of those state courts that counsel may not admit a client’s guilt over the client’s objection.

If you read my previous posts on this case, you know I think this was the right decision.

First, the Louisiana Supreme Court was wrong when it held that English’s conduct was justified because otherwise he would have used false evidence.  As the Court explains, the fact that English did not believe McCoy’s account does not mean that pursuing McCoy’s preferred defense would constitute using false evidence.  Louisiana’s ethical rules might have prevented English from presenting McCoy’s alibi evidence if English knew false evidence or perjury was involved, but English did not have such knowledge.  According to the rules, mere suspicion (or even a reasonable suspicion) that a client might be lying is not enough to trigger the duties in the rules related to the duty of candor.

More importantly, on the main issue before the Court, the Court held that, as stated in rules of professional conduct, it is the client – not the lawyer – who has the right to make decisions related to the objective of the defense:

. . . Just as a defendant may steadfastly refuse to plead guilty in the face of overwhelming evidence against her, or reject the assistance of legal counsel despite the defendant’s own inexperience and lack of professional qualifications, so may she insist on maintaining her innocence at the guilt phase of a capital trial. These are not strategic choices about how best to achieve a client’s objectives; they are choices about what the client’s objectives in fact are.

. . . When a client expressly asserts that the objective of “his defense” is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt.  . . . see ABA Model Rule of Professional Conduct 1.2(a) (2016) (a “lawyer shall abide by a client’s decisions concerning the objectives of the representation”). 

For these reasons, it was improper for English to override McCoy’s decision.  McCoy’s decision may have been a bad decision, but it was a decision he had the right to make.

Having decided that the lawyer’s admission of the client’s guilt over the client’s express objection the conduct of the attorney was improper, the Court then decided that it was a violation of the client’s Constitutional rights and that, therefore, McCoy must be granted a new trial. 

In terms of the professional responsibility issue, this decision is correct, and consistent with precedent and logic.   The rules reserve the right to decide to the client.  The lawyer took away the right when he acted against the client’s instructions.  Thus, the lawyer acted improperly.

Yet, as you may recall, I was also interested in this case because I wanted the court to confront its decision in Florida v. Nixon, in which the court held that a lawyer can make a decision for the client if the client does not object.

Interestingly, Justice Ginsburg wrote the opinion in both cases, although  I guess that should not be surprising.  I assume that knowing the McCoy case would force the Court to address what it decided in Florida v Nixon, she would want to keep control of the discussion to protect her opinion in that case.

I was hoping the Court would use McCoy to admit its decision in Florida v. Nixon was wrong, but that did not happen.  Justice Ginsburg was very careful to distinguish the two cases:

Florida v. Nixon . . . is not to the contrary. Nixon’s attorney did not negate Nixon’s autonomy by overriding Nixon’s desired defense objective, for Nixon never asserted any such objective. Nixon “was generally unresponsive” during discussions of trial strategy, and “never verbally approved or protested” counsel’s proposed approach.  . . . Nixon complained about the admission of his guilt only after trial. . . . McCoy, in contrast, opposed English’s assertion of his guilt at every opportunity, before and during trial, both in conference with his lawyer and in open court. . . . If a client declines to participate in his defense, then an attorney may permissibly guide the defense pursuant to the strategy she believes to be in the defendant’s best interest. Presented with express statements of the client’s will to maintain innocence, however, counsel may not steer the ship the other way. 

I understand how the facts in the two cases are different, but I still think that the lawyer in Florida v. Nixon negated the client’s autonomy just as much as the lawyer in McCoy.  The fact that the client did not object, to me, does not justify a different result.

The decision in Florida v. Nixon is not as clear as Justice Ginsburg makes it sound today.  It is not clear whether the Court found that the lawyer had provided ineffective assistance of counsel (a) because, although the decision was for the client to make, the lawyer could make it because the client was incapable of communicating with the lawyer or (b) because the decision was for the lawyer to make because it was "tactical" in nature.

The first option goes against the rules of professional conduct.  The second is based on the position that conceding guilt to avoid the death penalty relates to “means” rather than objectives of the representation and therefore falls under the authority of the attorney.

Do you see the problem?  If the decision in Florida v. Nixon was based on the second argument (and that is what it seems to be the case), how can Justice Ginsburg now be saying in McCoy that the same decision is exclusively for the client to make? 

Once we get to that point, the only way to justify the decision in Nixon is to say that the fact that the client was unresponsive changed the character of the decision, making it possible for the attorney to make the decision for the client.  Yet, this is not what the rules of professional conduct say because the client had diminished capacity and the lawyer is not supposed to make decisions for the client.

The bottom line for me is this.  If we are going to accept that, as the Court concludes in McCoy, “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,” then we should conclude that the decision in Florida v. Nixon was wrong and should be overturned.

Thus, for me, McCoy is an incomplete victory.  It is the correct result for McCoy; but it did not correct the result in Nixon.

Finally, it should be noted that the three justices considered to be the most conservative (can you guess who they are?) dissented in McCoy, arguing that the Court should not have granted review in the case because the issue presented was so rare that it did not merit discussion by the court.

On the merits of the question, however, they argued, among other things that attorney English did not admit that McCoy was guilty of murder. Instead, they argued, he admitted that McCoy killed the victims.  Based on this distinction, they argued that English did not concede guilt of the crime, but rather, conceded just one of its elements, and they questioned what would be the decision if a lawyer concedes guilt of a lesser included offense.

Finally, they wondered what will happen if petitioner is retried, stating that “it will be interesting to see what petitioner’s . . . counsel . . . will do. It is a safe bet that no attorney will put on petitioner’s conspiracy defense.”

These last two questions might be interesting, but they are irrelevant.  The fact of the matter is that the attorney acted improperly in making a decision that is reserved for the client to make.  The real issue in the case was whether that conduct amounted to ineffective assistance of counsel.  The majority opinion found that it did; the dissenters did not rebut that conclusion.

You can read the full opinion here.

Supreme Court decides McCoy v Louisiana, finding ineffective assistance of counsel when attorney conceded guilt over client's objection

Back in October I wrote a comment on McCoy v. Louisiana, a case before the US Supreme Court in which a Louisiana death row inmate argued he received ineffective assistance of counsel because his lawyer conceded his guilt over the defendant's objection. (I later posted some updates and relevant links here.) 

In my original post, I argued, among other things, that the case could result in expanding the reach of an older case which I don’t like (Florida v. Nixon).  In Nixon, the Court found that the lawyer had not provided ineffective assistance of counsel based on a distinction between "conceding guilt" and "pleading guilty."   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 a fundamental decision, which is explicitly reserved for the client to make, without client consent.

McCoy had the potential to make things worse because the Court was asked to find no ineffective assistance of counsel even if an attorney decided to concede guilt over the express objection of the client. 

Yet, I am pleased to report that the Court found for the defendant, holding that

“a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. Guaranteeing a defendant the right “to have the Assistance of Counsel for his defence,” the Sixth Amendment so demands. 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 reason- able doubt.”

I definitely think this is the right decision in this case.  I just wish the Court had used the opportunity to find it had erred in Nixon (and to overrule it) too.

You can read the full opinion here.  The SCotUS blog has an analysis of the opinion here and NPR has a short comment here.

US Supreme Court hears oral argument in McCoy v Louisiana; Justice Sotomayor compares it to an ethics class in law school -- UPDATED

Back in October I wrote a comment on McCoy v. Louisiana, a case before the US Supreme Court in which a Louisiana death row inmate is arguing ineffective assistance of counsel because his lawyer conceded his guilt over the defendant's objection.  During the argument Justice Sotomayor said the case sounded like a law school hypo.  And she is right (for all the reasons I mentioned in my comment).  Also, according to the ABA Journal, Justice Neil Gorsuch was among the justices who appeared to see merit in the defendant's case.

The ABA filed an amicus brief (see here).

The oral argument is available here.

Bloonberg Law has a story on the case here.

The New York Times has an article on the case here.

The SCotUS blog has a summary and analysis of the case here.

NPR's coverage of the case is here.

Above the Law has a post on the case here.

I am very interested in how the Court will decide this case and, particularly, how it will treat Florida v. Nixon.  (Again, see my comment above).

UPDATE 1/26/18: Ethical Grounds has a comment on the case here.

Georgia issues opinion on conflict of interest when serving as attorney for a minor and guardian ad litem at the same time

Back in 2010 I posted a comment criticizing the practice of appointing attorneys for juveniles in delinquency proceedings to serve simultaneously as guardians ad litem and urging the Illinois Supreme Court to grant review in a case that challenged it. I stated that the way courts justified the practice "displays a complete lack of understanding of the very notion of the attorney-client relationship. The notion that some attorneys are attempting to serve as guardians at litem and advocates for the minors at the same time is inconceivable to me. The two roles are, by definition, almost always incompatible." Later I wrote a law review article on the subject (available here) in which I made a long argument in support of my position.  The Illinois Supreme Court eventually decided, as I had suggested, that the dual appointment constituted a conflict, and I wrote another article commenting on the case (available here.)

That case, however, was limited to the practice in juvenile delinquency proceedings, and I found out later that Illinois courts continue to assign lawyers the dual role of attorney and guardian in family law matters.  In my opinion, the fact the are of the law is different does not make a difference and it is disturbing that the practice continues.

Today I found out, however, that earlier this month the Georgia Supreme Court approved an ethics opinion about the subject finding that it is a conflict of interest to serve as both a child's lawyer and guardian ad litem in a termination of parental rights proceeding when the child's wishes and best interests conflict.

The new opinion, which was issued by the Georgia State Bar's Formal Opinion Advisory Board, is attached as an appendix to the court's per curiam opinion approving it (In re Formal Advisory Opinion No. 16-2, 2017 BL 444895, Ga., No. S17U0553, 12/11/17).

The opinion concludes that when an irreconcilable conflict of interest develops between the child's wishes and the lawyer's view of the child's best interests, the lawyer must withdraw from the role of guardian ad litem, and may seek to withdraw entirely if the conflict is severe.

ABA files amicus brief arguing that conceding guilt over client's objection constitutes ineffective assistance of counsel

A couple of weeks ago, I posted a comment on McCoy v. Louisiana, a case before the U.S. Supreme Court 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 my comment here.  Today, I learned that 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.

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.

Interesting new study on professionalism

Ethical Systems.org is reporting on a new paper on Professionalism and Moral Behavior which tests the hypothesis that individuals in traditional occupations that strongly identify as professionals (e.g., law, medicine) have a greater likelihood of engaging in unethical behavior. This is an important inquiry in light of ethical failures in companies where lawyers and accountants often act as “gatekeepers” on ethics and compliance issues vis a vis corporate practices.  Examples of incidents in these types of companies abound, with automakers and financial companies featuring prominently on the list.  Go here for more information and links.

On a related matter, here is a comment on the ethical culture that allows conduct as the one recently discovered Volkswagen perpetrated to deceive consumers and authorities.

On teaching how to represent a client with diminished capacity

The blog IP Ethics & Insights has a monthly feature on "what they don't teach you in law school" which is actually making me feel pretty good about my own teaching because the last two topics it has covered (here and here) are things I actually do teach in my class.  The first one was how to handle client's money, which I will be covering in class today, as a matter of fact.

The second one is how to represent a client with diminished capacity, which I cover as part of the discussion on the basic principles of an attorney-client relationship.  IP Ethics & Insights covers the basics here.  To discuss this material I assign a case called In the Matter of MR, 638 A.2d 1274 (N.J. 1994), which provides a good discussion of the basic principles and a helpful analysis on how to evaluate the proper role of the lawyer and the allocation of the decision making authority within the attorney client relationship. 

If you want more information about what I cover in my class (and how I do it), feel free to visit my course website here.

When Does Advice to a Client Violate an Attorney’s Ethical Obligations?

"Many attorneys have experienced situations in which a client has sought advice about proposed actions which “push the legal limit” or are even clearly illegal. How far—if at all—may attorneys go in assisting a client to engage in questionable activity?"

This is the introduction to an excellent short comment published in the most recent New York Legal Ethics Reporter.  Go here to read the full article.

Interesting oral argument before the Illinois Supreme Court on allocation of authority to make a decision and ineffective assistance of counsel

The Illinois Supreme Court heard an interesting oral argument today involving an allegation of ineffective assistance of counsel based on the fact that the attorney did not advocate for a position in favor of the client (defendant in a misdemeanor case).  One of the things that make the case interesting is the unusual circumstances that gave rise to the appeal.

At some point during the process, the prosecutor asserted a "bona fide doubt" as to the fitness of the defendant to stand trial.  Counsel for the defendant did not object.  Based on the state's statement, the court ordered an evaluation of the defendant.  On appeal, the defendant (represented by a different attorney) is now claiming that the trial counsel was ineffective because he did not object to the state's argument of unfitness.

During the oral argument, the justices ask good questions about whether the decision on what position to take as to the fitness of the defendant is one for the defendant or the attorney; whether it is strategic or substantive, etc.  In part, defense counsel argued that the decision belonged to the client because it involved more than mere "tactics."  Because this was a misdemeanor case, a finding of unfitness could result in the defendant remaining confined for a longer period of time than if found guilty.  Thus the decision on what position to take as to the fitness of the client affected the ultimate goals of the representation.  For that reason, the defendant is arguing that the attorney's failure to take her position that she was fit constituted ineffective assistance of counsel.  In contrast, the state argued that although the attorney may have had a professional responsibility duty, the failure to object did not amount to a violation of the right to effective assistance of counsel.

Another issue discussed by the parties is whether there was a need to request a guardian ad litem and whether the decision in Austin M., a case I have written about, applies to this case.

You can listen to the audio of the oral argument here or watch the video here.

On how to handle a problem client

Professional Liability Matters (blog) has a short comment with practical advice on how to handle a problem client here.

Should a lawyer be disciplined for his conduct as a client of another lawyer?

Just a few days ago, the Missouri Supreme Court issued an opinion that raises an interesting question.  Here is the story, in a nutshell:  suppose attorney A hires attorney B to help him file a series of claims.  Now assume that the claims are frivolous.  Clearly Attorney B would be subject to discipline and sanctions under both rules of professional conduct and rules of procedure - assuming Attorney B knew the claims were frivolous.  But how about Attorney A.  He was not practicing law; he was a client. 

The court found the lawyer should be disciplined and, in fact, imposed a pretty severe sanction for the conduct.  The case is called In re Lawrence J Hess and it is available here.  (Thanks to the Legal Profession blog for the link.).  One judge wrote a concurring opinion arguing that the rule on frivolous litigation should only apply to the lawyer who acted as a lawyer not to the one acting as a client.  One judge wrote a dissenting opinion finding the conduct did not violate the rules at all.

The concurring opinion makes an interesting point.  She argues that the conduct violated rule 8.4 (conduct prejudicial to the administration of justice), but that the rule related to filing frivolous claims should apply only to the lawyer acting as an advocate.  It is this lawyer who has the duty to exercise independent professional judgment to decide whether the claim is frivolous and who has the duty to tell the client it should not be filed.

This is a close call for me.  I understand the logic of the argument in the concurring opinion, but it is not inconsistent with other rules to say that they apply to lawyers even when they are not in the practice of law.   In the end, given that the sanction would not change regardless of whether it is determined that the attorney violated one or two rules, the issue may just be academic.