Against the vast resources and authority of the State in an asymmetric adversarial process, it’s easy for a criminal defense lawyer to feel powerless sometimes. But criminal defense lawyers hold enormous power over our clients’ lives. By the time citizens accused engage a criminal defense lawyer or have one appointed, most have already lost a substantial amount of liberty and autonomy. If they aren’t incarcerated, they’re likely on bond or under other restrictions. They’re on the hook to appear for court dates that they didn’t choose. We speak for them in court and in other communications, and we counsel and advise them on what choices and decisions to make in some of the most important situations they will ever face.
There exists a very real risk that we wield our power according to what we believe is in our clients’ best interests, not what our client believes is best. Our duty is to learn and advance the objectives of our clients using the general methods decided by the clients. Tempered by other duties under the law and with our consciences as the touchstone, the law says our clients remain the deciders in all fundamental decisions related to the representation.
As a matter of ethics, the Texas Disciplinary Rules of Professional Conduct outline the categories of decisions on which the client is the ultimate authority in Rule 1.02: “[A] lawyer shall abide by a client’s decisions: (1) concerning the objectives and general methods of representation; (2) whether to accept an offer of settlement of a matter, except as otherwise authorized by law; [and] (3) in a criminal case, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.”
The rules establish a floor, not a ceiling. Merely because these rights are explicitly listed, it does not follow that the remaining decisions are reserved for the attorney alone. The specific client decisions fundamental to liberty and protected under the Constitution are more expansive, and they may be wildly different from case to case.
Criminal lawyers often think of the objectives of representation in terms of distributive justice, that is, the result—the verdicts and sentences handed down. The client’s autonomy interest, however, extends far beyond the realm of distributive justice and may, in fact, have nothing to do with distributive justice at all. Violation of that autonomy violates substantive rights, to be sure, but it also violates core tenets of procedural justice and undermines the key to maintaining the legitimacy of the legal system.
Being mindful not to impose or infringe upon a client’s autonomy to decide the objectives and methods of representation is even more important for appointed counsel representing people who are indigent. Without the freedom to contract or choose their own attorney, people who are indigent already lack the autonomy of their wealthier counterparts. Telling an indigent citizen accused of a crime “that his lawyer has the power to decide the theory of the defense, and that his lawyer has the power to concede his guilt to lesser-included offenses ‘can only lead [the defendant] to believe that the law contrives against him.’”
When given the sacred duty of protecting one of our fellow citizen’s freedom, we’ll serve them best when we understand freedom entails far more than a trial result or number of years on a sentence. As Lawrence v. Texas explains, “Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” Another case out of Texas, Roe v. Wade, makes clear that some decisions are so personal that the right to make those decisions is Constitutionally protected by the right to privacy, which is fundamental and “implicit in the concept of ordered liberty,” and the Constitution protects as a fundamental right the ability to make unimpeded decisions about personal matters related to marriage, procreation, contraception, family relationships, and child rearing and education.
The nature of choices belonging to the client without infringing on their fundamental liberties are broad and sometimes abstract. “The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs.”
Practice Principle: Know your role (at any given time). We wear many hats, each requiring different considerations.
All of this does not mean that a criminal defense lawyer has no power over representation decisions. In the role of advocate, the lawyer controls trial management matters. The Supreme Court recognizes that ceding some power to the trial lawyer is “a practical necessity.” “The adversary process could not function effectively if every tactical decision required client approval.” In addition to Texas rules in accord, the ABA Criminal Justice Standards for the Defense Function also make clear, “Defense counsel is the client’s professional representative, not the client’s alter-ego. Defense counsel should act zealously within the bounds of the law and standards on behalf of their clients, but have no duty to, and may not, execute any directive of the client which violates the law or such standards.”
The big decisions, however, belong to the client. At the time the Constitution was drafted, “The right to counsel, far from being seen as a means for undermining defendant autonomy, instead was intended, like the other trial guarantees in the Constitution, to provide defendants themselves with a necessary tool for making and acting upon the most well-informed decisions.”
Avoiding conflict in the attorney-client relationship when it comes to the allocation of decision-making authority isn’t always easy; but taking a client-centered approach with a healthy dose of humility can go a long way toward easing tensions with the highly-involved and highly-autonomous client. Taking an approach that recognizes the clients as more than the facts of their case builds trust, which can often lead to the fruitful kind of working relationship that prevents conflict from arising.
Practice Principle: Be a patient teacher. If you’re having trouble getting through to a client, bring in help from someone who might be able to reach them. It might be family, a colleague, a counselor, clergy, or another trusted agent; but make every effort to make the client’s concerns heard and make every effort to help the client obtain complete and accurate information in a way that they can accept and understand it.
Though criminal defense lawyers are called upon to be zealous advocates for our clients, we also have a duty to fill various other roles in service to our clients. Providing the effective assistance of counsel that the Constitution demands requires it. For even the busiest of trial lawyers, some of the most important work a criminal defense lawyer ever does is entirely off the record, confidential, and never subject to scrutiny by any oversight authority except the lawyer’s own client. While much attention is given to our role as advocate, the role of counselor and advisor to our clients is integral to the guarantees of the Sixth Amendment. This private role gives us the unique task of protecting our clients’ fundamental right to secured autonomy.
A client’s objectives are often placed into conflict with one another. Similarly, a client’s objectives may be tempered and limited by the methods they’re willing to employ to accomplish the objective. The “lifeblood of the law” is respect for the individual. Every individual client is going to have hopes, dreams, aspirations, and a sense of who they are and who they want to be that is unique to the individual. And just as lawyers must use their own consciences as the touchstone for guiding their actions, so too must clients use their own consciences as their touchstones. As counselors, it’s our duty in our role as counselors to help them through the process in ways that exceed mere advocacy.
Practice Principle: A client may have more than one objective of the representation. Objectives of representation are not often as simple as “win at all costs” or “get the lowest sentence possible.”
To use just one example of how competing objectives might present themselves in a concrete way, consider the following hypothetical:
The client refuses to admit guilt to a heinous crime, even though he’s certainly facing a conviction and 25 years if he goes to a jury. If he takes a plea, he’s out on time served with probation. The client’s lawyer informs him of all the risks, shares a candid assessment of the likelihood of going to a jury, and educates the client about the reality of coercive plea-bargaining tactics and about the realities of the trial penalty designed to deprive him of his day in court. But the client simply cannot say he did something he didn’t do. The prosecutor continues to take a hard line and won’t budge with the coercive plea bargaining. The client’s preference is to avoid a trial if at all possible because he doesn’t want the public spectacle and humiliation, and the client is risk averse and is seriously tempted to take the offer regardless of the facts.
Many clients simultaneously desire the objective to maintain innocence and the objective to secure the benefit of a plea bargain in the face of overwhelming evidence or in the face of coercive plea practices. It would be a challenge to find a criminal defense lawyer who was unfamiliar with clients pleading guilty simply to get out of jail, regardless of guilt or innocence.
How can the criminal defense lawyer help the client best meet the client’s competing objectives when the objectives are so incompatible? Educate the client on the possibility of pursuing an Alford plea. If the client decides that’s the best method to achieving his competing objectives, pursue that method of resolving the case.
And certainly, there is no explicitly stated Constitutional right to an Alford plea (yet), and the court may not be obligated to accept an Alford plea or a plea of nolo (yet), but considering the client has a right to personal autonomy and to choose the objective of his defense, it would follow that a client at least has the right to be made aware of an Alford plea as an option to pursue as a possible means to achieve both of his competing objectives—in other words, even if the court is not required to allow an Alford plea, the client has a right to ask.
In Texas, an Alford plea is implemented through a plea of nolo contendere, which has the legal effect of a guilty plea. Though a plea of nolo contendere in Texas has the same effect in the criminal proceeding as a plea of guilty, it is a plea expressly allowed by statute that carries important distinctions from a plea of guilty. A plea of nolo contendere cannot be used against a party in any potential future civil suits arising out of the same accusations. More importantly, a defendant might be able to obtain the benefit of a guilty plea while maintaining innocence and not admitting guilt, which may best achieve the client’s objectives of representation.
We would all do well to remember that the choice on how to plead is not a binary choice of guilty or not guilty. And the choice to admit guilt or concede guilt is a separate and distinct choice from the decision to plead, and it is no less protected by the Constitution. Justice Ginsberg made clear in McCoy v. Louisiana that when it comes to choices about how to plead and whether to maintain innocence or admit guilt, “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 it comes to the “more transcendent dimensions” of liberty under our Constitution, our clients depend on us getting to know them in a concrete way on an abstract level. If we can’t do that with our own clients, what hope do we have of helping the prosecutor, judge, or jury do the same?