When lawyers and defendants can’t agree about an issue as fundamental as whether to go to trial, it’s normally the defendant’s desire that prevails. Assuming that a defendant’s decision is neither unethical nor illegal (“My decision is that you should bump off the prosecution witness”), the lawyer is the defendant’s agent and must either carry out the defendant’s decision or convince the judge to let him withdraw from the case. But defendants should not obstinately refuse their attorneys’ advice. Defendants should ask questions to make sure that they understand the advice and why the lawyers think it’s in their best interests before making a decision.

Example: Randy is charged with aggravated assault, and has insisted to his lawyer that he struck the alleged victim in self-defense. One day, Randy’s lawyer phones him to say that he’s worked out a good deal with the prosecutor: If Randy pleads guilty (or nolo contendere) to simple assault, the prosecutor will recommend that Randy be given a sentence of time served (the jail time he already served while waiting to make bail), and a small fine. However, Randy still believes that he is not guilty and is not sure that he wants to settle the case. Randy can tell his lawyer to tell the D.A. that there is still no deal. Despite what the lawyer said, the lawyer has no power to make a deal without Randy’s personal approval. However, Randy can expect a letter from the lawyer outlining the deal and stating that Randy has decided to reject it in spite of the lawyer’s recommendation that he accept it. Lawyers write such letters in order to make it crystal clear to the defendant what’s at stake, and to protect themselves should the client later claim that the deal was never communicated.

Communicating Plea Bargains

Like the decision about whether to go to trial, defendants are entitled to decide whether to offer or accept plea bargains. To enforce this right, defense attorneys are ethically required to:

• relay their client’s offer to plead to the prosecutor, and
• relay the prosecutor’s offer to accept a particular plea to their client.

It doesn’t matter if the defense attorney believes that the defendant’s offer won’t be accepted or the prosecutor’s offer is unacceptable.

Deciding Whether to Plead

Before making an important decision, a defendant is entitled to know what alternatives are reasonably available and, as far as can be predicted, the likely consequences of each. For example, assume that the defendant is charged with assault with a deadly weapon. The defense attorney tells the defendant, “The prosecutor is willing to accept a guilty plea to simple assault and recommend a sentence of six months in county jail and a fine of $500. The decision is yours—what do you want to do?”

The defendant’s response should be something like, “Let’s see what my options are, and try to figure out the likely consequences of each one.” Here, the defendant and the attorney should readily identify at least three possible options:

• plead guilty now
• plead guilty later, or
• refuse to plead guilty and go to trial.

• "Is there a chance that I’ll get a better deal if I wait until closer to the trial to plead guilty?”
• “What sentence am I likely to receive if I go to trial and I’m convicted of assault with a deadly weapon?”
• “I’m trying to get a job. Do you think a conviction for assault with a deadly weapon will look worse than one for plain assault?”

Defendants should not count on having perfect information about the likely consequences of each option. For instance, a defense attorney may have to respond to the second question above by saying, “It’s really hard to predict what sentence you’ll receive if you’re convicted of assault with a deadly weapon. The judge to whom we’ve been assigned is very unpredictable, and a lot will depend on the recommendation in the probation report that will be prepared after you enter your plea.”

Nevertheless, the attorney should provide as much information as possible on the likely consequences of all available options, so the defendant can make the best decision under the circumstances. Attorneys have a professional obligation to offer candid advice: their best professional judgment, not simply what defendants want to hear.

Not Following Your Lawyer’s Advice: Can the Lawyer Withdraw?

Occasionally, lawyers and defendants have such strongly opposing views that the lawyer cannot effectively carry out the defendant’s desired strategy. In such a situation, the attorney may seek to withdraw as the defendant’s counsel, or the defendant may seek to have the attorney replaced. Whether this will be permitted in either case depends on whether the prosecutor will be prejudiced or the proceedings will be unnecessarily delayed or disrupted.

Example: Denise is charged with burglary, and is represented by a public defender. Unfortunately, Denise and her attorney do not always agree on the best strategy. Denise also thinks that her attorney is cold and aloof and not committed to her defense. Denise asks the judge to appoint a different public defender. However, a change of counsel in this context is very unlikely. Defendants who hire private counsel can replace them at will, as long as doing so doesn’t unduly delay proceedings. But defendants who are represented at government expense get whomever the judge appoints or a public defender’s office assigns. Unless attorney-client communications have broken down to such an extent that Denise cannot get a fair trial, the judge will probably refuse to appoint a new attorney.

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

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