Don’t be fooled by movie and TV defense attorneys who often say things to clients like, “Do it my way or else.” As lawyers’ ethical codes recognize, cases belong to defendants, not to their attorneys. It is always the client, not the attorney, who pays the fine or serves the time. Thus, defendants have the right to participate in important case decisions.
On the other hand, lawyers are not “mouthpieces.” They are not required to fulfill all of their clients’ demands, especially if doing so would conflict with ethical rules or the lawyers’ own professionalism.
Decisions That Belong to the Client
Standard 4-5.2 of the American Bar Association Standards for Criminal Justice identifies decisions that defendants are entitled to make, after consultation with their attorneys. They include:
- what plea to enter (usually, guilty or not guilty)
- whether to accept a plea bargain
- whether to waive (give up) a jury trial
- whether to personally testify at trial, and
- whether to appeal.
Decisions about these matters are entrusted to clients not only because the matters are important, but also because lawyers normally have time to consult with their clients before the decisions are made. “Consultation” is a key term. Before making any decision, defendants should insist on meeting with their attorneys to review their options and the likely consequences of each.
Getting Involved as Much as Possible
Because each case is unique, no bright line separates important decisions that are for defendants to make from other decisions that lawyers can be expected to make. Generally, a decision is important if it is likely to have a substantial legal or non-legal impact on a client.
Two lawyers handling the same case may sometimes reasonably disagree about whether to leave a particular decision to the defendant. In the final analysis, defendants who want to have as much involvement as possible in making decisions should do the following:
- repeatedly tell their attorneys that they want to participate in the decision making whenever feasible
- include in their lawyers’ fee agreements (see Chapter 7) a clause allocating decision making to the defendant whenever feasible
- insist that their lawyers counsel them about the availability and consequences of various options, and
- put their words into actions by making decisions expeditiously as the opportunities arise.
Decisions that Lawyers Normally Make
It simply isn’t feasible for defendants to make all the decisions regarding their cases. Some decisions, such as how to question potential jurors, rely heavily on the attorney’s professional skills and experience. Decisions like these also have to be made on the fly, which puts them largely beyond the control of defendants. In the heat of trial, attorneys can’t stop the proceedings and meet with their clients to make decisions about what questions to ask or objections to make.
Nevertheless, lawyers’ ethical standards identify some trial-related decisions that defense attorneys should make only after consultation with clients, provided that time permits. These decisions include:
- what witnesses to call
- whether and how to cross-examine prosecution witnesses
- what jurors to accept or strike
- what trial motions to make, and
- what evidence to introduce.
Many attorneys think these decisions should be entirely in their hands. Thus, clients who want a voice in as many decisions as possible should discuss their wishes with their attorneys at the outset of the case.
This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.