Absolutely. The lawyers’ ethical responsibilities require that they involve clients in the decision-making. The Rules of Professional Conduct all lawyers are required to abide by state, “A lawyer shall explain a matter to the extent necessary to permit the client to make informed decisions regarding the representation.” Moreover, Standard 4-5.2 of the ABA Standards for Criminal Justice lists a number of decisions that “are to be made by the accused after full consultation with counsel.” Don’t be fooled by movie and TV defense attorneys who often say things to clients like, “Do it my way or else.” The lawyers’ ethical codes recognize, cases belong to clients, not their attorneys. It is alway... Read More
The American Bar Association Standards for Criminal Justice identifies decisions that are for clients to make after consultation with their attorneys. They include most basic and important decisions include:
What plea to enter (usually, guilty or not guilty);
Whether to accept a plea bargain;
Whether to waive a jury trial;
Whether to personally testify at trial; and
Whether to appeal.
Consultation is the key. Before making any decision, clients should insist on meeting with their attorney to review their options and the likely consequences of each.
Because each case is unique, no bright dividing line separates important decisions that the client should 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 client. In the final analysis, clients who want to make as many potentially important decisions as possible 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 a clause allocat... Read More
It simply isn’t feasible for clients to make all the decision regarding their cases. Some decisions an attorney needs to make because of his/her professional experience and, because of the spontaneous nature of that procedure. Decisions like how to pick the jury are largely beyond the control of the clients. Similarly, in the heat of a trial, attorneys often need to make judgment calls on the spot about how to question a witness and cannot confer with the client for each question. Nevertheless, some trial-related decisions that defense attorneys should make only after consultation with clients include:
What witness to call;
Whether and how to cross-examine prosecution witnesses;
What tr... Read More
You hire a lawyer for a reason: because you need his/her expertise in handling the types of charges you are faced with. However, this doesn’t mean the client and attorney will see eye to eye all the time. Assuming that a client’s decision is neither unethical nor illegal ('My decision is that you should bump off the prosecution witness”), the lawyer is the client’s agent and must either carry out the client’s decision or convince the judge to let him withdraw from the case. Client should expect lawyers in such circumstances to prepare documents which explain that the client voluntarily chose to ignore the attorney’s advice. The lawyer will do this to protect against later claims of incompete... Read More
And, Does My Attorney Have To Tell Me About The Prosecutor's Counter-Proposal?
Like the decision about whether to go to trial, decisions about whether to offer or accept plea bargains are for client to make. 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 that the defense attorney believes the client’s offer won’t be accepted, or that the prosecutor’s offer is unacceptable.
Before making an important decision in the case, the client is entitled to know what alternatives are reasonable available, and the likely consequences of each. For example, assume that the client is charged with assault with a deadly weapon. The defense attorney tells the client, “The Prosecuting Attorney is willing to accept a guilty plea to simple assault and recommend a sentence of six months in jail and a fine of $500. The decision is yours – what do you want to do?” The client’s response should be, “What are my options and what are the likely consequences of each one.” The client and the attorney should readily identify at least three possible options:
Plead guilty now;
Plead guilt... Read More
Occasionally, lawyers and clients have such strong opposing views that they lawyer cannot effectively carry out the client’s desired strategy. In such a situation, the attorney may seek to withdraw as the client’s counsel or the client may seek to have the attorney replaced. Whether this will be permitted in either case depends on whether the proceedings will be unnecessarily delayed or disrupted and the judge must rule on it.
Yes, clients frequently tell friends after a case is over the “my lawyer didn’t tell me what was going on.” To prevent this from happening, clients should insist that their lawyers adhere to their ethical obligation to inform them about the progress of cases.
As defined by ethical rules, a lawyer’s duty to keep clients informed has two primary components:
To advise the client of case developments (such as prosecutor’s offered plea bargain or locating an important defense witness), and
To respond reasonably promptly to a client’s request for information.
The duty to keep clients informed rests on attorneys, not clients. Here are a few steps clients can take to try to secure effective communication with their lawyers:
Establish, in advance, clear understandings about case updates. If an attorney’s practice is to initiate contact only when a development occurs, the attorney should indicate that to the client at the outset of the representation. If a client wants (and can pay for) regular updates regardless of whether developments have taken place, that too can be spelled out in advance—even included in a written retainer agreement.
A client who phones his or her attorney with a request for information can indicate a willingness to speak ... Read More