FAQs - Client Involvement


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1. Should I Expect My Lawyer To Involve Me In Important Decisions?

1. Should I Expect My Lawyer To Involve Me In Important Decisions?

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 always the client, not the attorney, who pays a fine or serves the time.


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2. How Do I Know Which Decisions Are Important Ones?

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.


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3. Are There Other Decisions That I Should Think About Making?

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 allocating decision-making to the client whenever feasible;
Insist that their lawyers counsel them with respect to their alternatives, and the likely consequences of each; and
Match deeds to words by making decision expeditiously as the opportunities arise.


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4. If It's My Case, Why Can't I Make All The Decisions?

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 trial motions to make; and
What evidence to introduce.

Many attorneys think these decisions should be entirely in their hands. Clients who want a voice in as many decisions as possible should discuss their wishes with their attorneys at the outset of the case.


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5. My Lawyer Is Urging Me To Accept A Plea Bargain; I Want To Go To Trial. Who Gets To Make The Decision?

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 incompetence.


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6. I Want To Propose A Plea Bargain. Does My Lawyer Have To Present It To The Prosecutor?

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.


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7. What Information Do I Need To Intelligently Decide Whether To Plead Guilty Or To Make Other Important Decisions?

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 guilty later; or
Refuse to plead guilty and go to trial.

Before making a decision, the client and attorney should discuss the likely consequences of each option. The client may ask questions such as:

“Is there a chance that I’ll get a better deal if I wait until close 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?”

Criminal defense attorneys do not have a crystal ball. There is no way to predict or guarantee an exact outcome or consequence. The attorney will tell you, based on his experience, what you might expect and offer candid advice. He or she will also give you the best and worst case scenarios. Ultimately, though, it is the client who has to decide which way to go.


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8. My Lawyer Threatened To Withdraw From The Case If I Did Not Follow The Lawyers Advise. Can A Lawyer Do That?

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.


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9. Does My Lawyer Have To Keep Me Informed On My Case?

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.


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10. What Can I Do To Make Sure My Lawyer Communicates With Me?

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 with the lawyer’s associate, secretary or paralegal. The lawyer must be too tied up on other cases to return the call personally, but may have time to pass the information to through an assistant. And because some lawyers have poor communication skills, the information coming from an assistant may be superior to what would have come from the lawyer.


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10. What Can I Do To Make Sure My Lawyer Communicates With Me?2. How Do I Know Which Decisions Are Important Ones?3. Are There Other Decisions That I Should Think About Making?4. If It's My Case, Why Can't I Make All The Decisions?5. My Lawyer Is Urging Me To Accept A Plea Bargain; I Want To Go To Trial. Who Gets To Make The Decision?6. I Want To Propose A Plea Bargain. Does My Lawyer Have To Present It To The Prosecutor?7. What Information Do I Need To Intelligently Decide Whether To Plead Guilty Or To Make Other Important Decisions?8. My Lawyer Threatened To Withdraw From The Case If I Did Not Follow The Lawyers Advise. Can A Lawyer Do That?
 

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Nicholas George - Spokane Criminal Attorney & DUI Attorney

1312 N. Monroe, Suite 263, Spokane, WA 99201
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