Who's Running the Show? Decision-Making in the Courtroom in Civil and Criminal Cases
“Now you’ll do as I say or I won’t represent you!”
—Ben Matlock,
Diary of a Perfect Murder (1986)
Glenn E. Bradford1
Introduction
Any lawyer who has participated in more than a handful of trials has experienced the tension which can occur between a lawyer and a client over decisions such as what claims or defenses to raise, what jurors to challenge, what witnesses to call, what evidence to introduce or try to exclude, or what theory of the case to pursue.2 There is always the client who sees every possible line of questioning as critical, except for the truly critical lines of questioning. Plaintiffs always seem to want to multiply your planned request for a dollar verdict by a factor of about 10. Every criminal defense lawyer has been presented with the fishy alibi witness, whose testimony almost always seems to do more harm than good. It is virtually always a difficult decision as to whether to put the defendant on the witness stand in a criminal trial. Although deciding whether to settle a civil case or accept a plea agreement in a criminal case is clearly a decision for the client, the attorney frequently has strong opinions on the issue which may or may not be consistent with the client’s own assessment of the situation.
It is difficult to accept the instructions of a client when such course of action is viewed by the lawyer as unpromising or counterproductive. One commentator noted this aspect of the problem: “Counsel’s sense of craft, her interest in her own reputation, and her ego also make it difficult to accept a counter productive (sic) strategy.”3 He concluded that “the good lawyer, like the good parent, will struggle to balance the client’s freedom of choice with the lawyer’s duty to prevent clients from inflicting harm upon themselves.”4
There is very little law in the books regarding decision-making in civil cases.5 This article will therefore focus primarily on the existing criminal case law, where there is considerably more guidance for the practitioner as to whether the client or the lawyer is entitled to make particular decisions at trial. Although some legal issues are certainly different as between civil and criminal cases, the basic principles involved and the mechanics for resolving lawyer-client disagreements are essentially the same.
II. “Mr. Darrow,” my father [Earl Rogers] said, “if I were the defendant, I would make you my chief counsel and trust you completely. So you must trust me.”6
Perhaps the most famous lawyer-client disagreements recorded in legal lore were the ones which developed between Clarence Darrow, indicted for attempted jury bribery in Los Angeles in 1912, and his chief counsel, legendary Los Angeles criminal lawyer Earl Rogers. The case arose out of Darrow’s defense of the McNamara brothers, labor leaders who were indicted in the 1910 dynamiting of the Los Angeles Times building in which 21 Times non-union employees were killed.7 Since the Times was widely considered as the most anti-labor newspaper in the country, it was universally suspected that factions in organized labor were behind the bombing.8 Eventually the McNamara brothers were indicted and Clarence Darrow was brought in to defend the case. The case gripped the attention of the entire nation. Before the McNamara brothers could plead guilty, however, Darrow himself was indicted by the Los Angeles District Attorney for allegedly attempting to bribe a juror. Darrow ultimately hired famed Los Angeles criminal defense lawyer Earl Rogers as his chief counsel. When the case went to trial, however, Darrow frequently disagreed with his attorney over how the case should be tried.
According to the account of Adela Rogers St. Johns, Earl Rogers’ daughter, much of her father’s energy during the trial was given over to trying to convince Darrow and his wife to accept his views on how to try the case.9 “[W]e had an almost daily row over Darrow’s courtroom behavior and continual scraps about the three lines of defense and which came first so that a lot of the time my father was as restless as a .400 hitter benched in the World Series.”10 “The drive it took for my father to control Darrow’s desire and insistance (sic) that the defense rest entirely on the conspiracy-frame-up basis was mounting into hot or icy quarrels.”11 “On several occasions Rogers threatened to quit him flat if he persisted in some course that Earl believed was wrong.”12 Significantly, Rogers was successful in getting Darrow, the great champion of organized labor, to refrain from making an argument essentially condoning the dynamiting of the Times building and the killing of 21 innocent people.13
Rogers and Darrow ultimately split closing argument duties. Rogers’ short summary of the evidence was business-like and to the point, emphasizing his own theory of the case that Darrow was too smart to have been involved in a bribery scheme and that he would not in any event have knowingly run across the street at the scene of the bribery and thus draw attention to his presence at the scene of the crime.14 Rogers gave particular attention to the report of a prosecution witness that Darrow had run across the street waving his hat. “[Earl Rogers] pranced into the corner and took his own elegant [hat] off the rack and began to wave it frantically. We saw it. Plainly. This was to be the visual, pictorial, unbelievable thing a man could not do if he was guilty, re-enacted before the jury.”15
After all was said and done, Darrow was acquitted in short order after a three-month trial. However, he was later indicted for allegedly attempting to bribe another juror in the McNamara brothers’ case. Earl Rogers began the second case as lead counsel but was soon forced to withdraw from the case due to health reasons. The second bribery trial ended in a hung jury, with several jurors holding out for a conviction. Rogers’ biographers have speculated that Rogers’ continued presence in the case might have controlled Darrow enough to produce a second acquittal.
Without Rogers to restrain him, Darrow did what he had wanted to do in the first trial. He attempted to condone the wholesale destruction of the Times employees as a social crime rather than a horrible murder. This plea in his argument to the jury caused several members, according to their story, to hold out for conviction. The jury could not agree and was discharged.16
It was not until many months later that the second indictment was finally dismissed, based on Darrow’s agreement never to practice law in California again.
No doubt the good judgment of Earl Rogers in convincing Darrow to forego his justification argument in the first bribery trial was an essential element in returning the Great Defender to his role as America’s leading advocate for organized labor, the poor and the oppressed. Clearly the most difficult advocating that Earl Rogers faced in the Darrow case was in convincing Darrow not to continually hurt his own case with unappealing – if not suicidal – arguments.
III. Florida v. Nixon
A recent case decided by the United States Supreme Court, Florida v. Nixon,17 revisited the problem of whether the lawyer or the client is entitled to decide particular issues of trial strategy and tactics. In Nixon, the Supreme Court reversed the Florida Supreme Court’s ruling that a lawyer in a death penalty case had provided ineffective assistance of counsel by conceding his client’s guilt in a brutal murder in order to “preserve his credibility” for arguments to be made in the penalty phase of the trial.18 The Florida Supreme Court had ruled19 that the lawyer had provided ineffective assistance of counsel by virtue of his decision to admit guilt without the explicit agreement of the defendant. Apparently, the lawyer explained his strategy to the defendant several times but the defendant was noncommittal and unresponsive.20
While acknowledging that a lawyer ordinarily has a duty to consult with the client on questions of “overarching defense strategy,” the United States Supreme Court held that obligation did not extend to “every tactical decision.”21 The Court ruled that it was within counsel’s prerogatives to decide such matters of trial tactics, even in the absence of an explicit agreement by the defendant, and that the attorney had therefore provided effective assistance of counsel. The Court stated that the Florida Supreme Court’s mistake was in equating the entry of a guilty plea, an issue which the client has the unquestionable right to decide, with an admission of guilt by the attorney during the guilt phase, where the state still has the burden of proof. On a guilty plea, a defendant’s tacit acquiescence is insufficient to render the plea valid. The Supreme Court ultimately held that the attorney had not provided ineffective counsel even though he had effectively admitted his client’s guilt without the client’s specific agreement.
IV. The General Rule: The client decides the “ends” and the lawyer decides the “means”
Although there is a good deal of established law on the criminal side, the law as to the duties and prerogatives of a lawyer in a civil case is less well developed. After the Nixon decision, the question might well be framed as: What trial decisions does the client have the right to make, what trial decisions does the lawyer have the right to make on his or her own, and what trial decisions should be made by the lawyer but after consultation with the client?
The general rule has been stated as follows:
In the litigation of a case, there are some procedural and tactical issues as to which the lawyer must exercise ultimate authority, even in the face of the client’s express objection; in such matters, the lawyer’s authority to bind the client is implied in law, as a necessary incident to the function he or she is engaged to perform.22
One commentator describes the traditional rule this way:
The traditional allocation of decision making authority is one in which the client decides the ends of the lawsuit while the attorney controls the means. Thus, the client determines such ends as whether to settle a civil suit or to plead guilty in a criminal case, and the attorney decides, even contrary to the client’s express wishes, what legal and constitutional arguments or defenses to raise. Although the right to waive a jury trial is the defendant’s, the attorney retains control over which jurors to select or strike. The right to appeal rests with the client, however, the attorney alone may decide what issues to raise on appeal. Similarly, such trial tactics as whether to call a witness (except a criminal defendant), whether and how to cross-examine a witness, and whether to object to evidence or testimony at trial, are all means decisions resting with the attorney.23
As noted in Florida v. Nixon, a criminal defense lawyer undoubtedly has a duty to consult with a defendant regarding the “important decisions,” including questions of “overarching defense strategy.”24 However, that general obligation does not require counsel to obtain the defendant’s agreement to “every tactical decision.”25 A lawyer has general authority to manage most aspects of the defense without obtaining the client’s approval.26 However, certain decisions implicating basic rights must be made by the client. A defendant has “the ultimate authority” to determine “whether to plead guilty, waive a jury, testify on his or her own behalf, or take an appeal.”27 With regard to these basic decisions, the lawyer must both consult with the defendant and obtain his express consent to the proposed course of action.
Under Missouri law, a criminal defendant likewise has the authority and the right to make certain fundamental decisions in a case: whether to plead guilty, whether to waive a jury trial, whether to take the witness stand in his own defense, and whether to appeal.28 Other procedural decisions which must be made during the course of a trial, from necessity, are held to be for the attorney alone, even without the advice or consultation of the client.29 Although the defendant decides whether to take an appeal, the determination of what issues should be presented on appeal is a decision for counsel.30 Likewise, the general rule is that the extent and subject matter of cross-examination must be left to counsel.31
A. One captain per ship: The courts have no power to impose unreasonable restrictions upon counsel with regard to trial tactics and strategy
From a review of the cases and literature, there appears to be a large gray area as to whether counsel or client gets to have the final say on issues of trial strategy and tactics. One commentator has made this observation as to the conflict which can arise when counsel and client cannot compromise:
Who to call as witnesses must be decided. It must be determined who has the final authority – the attorney or the client. Neither the Model Code of Ethical Considerations, the Model Code of Professional Responsibility, nor the Model Rules of Professional Conduct elucidate a bright line rule answering the ethical quandary.32
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Cases can be won or lost by the choice of witnesses. A credible witness that is able to present favorable testimony can be the deciding factor in a close case. Conversely, a witness with a questionable reputation or past may be the deciding factor in a close trial. The attorney wants to avoid anything that will negatively prejudice the jury toward his or her client.
In a well-known case, Patty Hearst claimed that F. Lee Bailey had provided ineffective assistance of counsel in defending her criminal case based on the argument that “she was not privy to certain aspects of the trial and pretrial decision-making process” and that many decisions, such as venue, were made without her knowledge or consent.33 The appellate court ultimately denied the claims of ineffective assistance of counsel, holding that the power to control strategic decisions rests with the attorney.34 “It has been clear since Henry v. Mississippi, supra, that absent a showing of exceptional circumstances, the strategic decisions of competent trial counsel are binding, even when made without the express consent of the defendant.”35
Bailey’s conduct of the Patty Hearst case was consistent with his stated philosophy of representing criminal defendants. “As to your position as his attorney, make it clear [to the defendant] that you alone will control the strategy of the defense, decide what legal points are to be raised, determine what witnesses to call, engage in whatever discussions you deem necessary with the prosecutor.”36
The noted Louis Nizer, who handled all types of litigation in his long courtroom career, provided a thoughtful explanation for the need for the lawyer to control his client:
A client, particularly in a matrimonial controversy, is so emotionally involved that he cannot be trusted to have cool judgment. His lawyer must be firm and in full control of the case, or he disserves his client. The lawyer must not be dependent on his client’s favor either because of fees or even friendship. What a man in legal trouble needs is not merely a friend, but a counselor. If a client is strongly guided by skillful and loyal hands, he has received also the most significant expression of friendship. Sentiment alone will not do. When the lawyer, in order to please the client, permits him to have his way, he may incur his favor temporarily, but they are both likely to be in trouble at the end.37
Similarly, Judge Clement F. Haynsworth, Jr. remarked that “the lawyer must never forget that he is the master. He is not there to do the client’s bidding
. . . . The lawyer must serve the client’s legal needs as the lawyer sees them, and not as the client sees them.”38
Since the constitutional protections applicable in a criminal case are not generally applicable in the trial of a civil case, it would appear that counsel in a civil case has even wider latitude in the management of the trial than would counsel in a criminal case. In a civil case, the client clearly has the right to determine whether to settle or try his own lawsuit.39 Indeed, implementing this right, it has been held that “the [e]mployment of an attorney in a lawsuit expressly authorizes his appearance in the case, and implicitly authorizes the attorney to bind the client in matters of procedure, including any stipulation for control of the progress of the action.”40 Under Missouri law, it has been deemed unethical for an attorney to fail to disclose a settlement offer to a client. Even in a civil case, the courts have no power to impose unreasonable restrictions upon counsel with regard to trial tactics and strategy.41
The impetus for court decisions granting wide discretion to trial lawyers seems at least in part rooted in practicality. “To allow the defendant to repeatedly interfere with the trial strategy of his counsel would disrupt the proper functioning of the trial court during trial and create havoc.”42 “Considerations of procedural efficiency require . . . that in the course of a trial there be but one captain per ship.”43
B. The “Client-Centered” Approach
A number of commentators have favored what they have termed the “client-centered” approach to trial decision-making.44 Professor Gerald F. Uelmen, a member of the O.J. Simpson “Dream Team,” has written that the Simpson defense team adopted a client-centered approach.
All the lawyers on the “team” were committed to the concept of “client-centered” lawyering. Some lawyers insist that a client relinquish all control, accepting the lawyer’s judgment on all questions of strategy. These lawyers pride themselves on their “client control,” as though the client is a passenger in the backseat while the lawyer maneuvers his case through the system. In teaching courses in client counseling and lawyering skills, I’ve always recommended that lawyers spend more time explaining options to the client, and let clients make more of the decisions. The client has to live with the consequences, and in the long run will be more satisfied with the outcome if he is in greater control.45
Professor Uelmen was quick to acknowledge, however, that O.J. Simpson was an unusually acute and involved client.46 He noted that “[t]he most important limitation on this concept [of client-centered lawyering] is that lawyers frequently have to deal with clients whose judgment is impaired, who are experiencing the greatest emotional trauma of their lives.”47 The client-centered approach indeed presumes an unimpaired client fully able to participate in trial decision-making.
One commentator has this description of the ideal lawyer-client relationship:
The ideal attorney-client relationship should rest upon a natural, informal give-and-take. When an attorney recognizes the importance of the client’s interests and respects his right to make important choices for himself – and when the client trusts his attorney, his knowledge, and his judgment – there is little need for a blueprint to allocate responsibility for the decisions that both parties are required to make.48
Unfortunately, all trial lawyers encounter situations when this ideal lawyer-client relationship cannot be realized as a practical matter.49
V. Rules of Professional Conduct
The Missouri Rules of Professional Conduct speak to the question of lawyer-client authority. Rule 4-1.2 (Scope of Representation) provides guidance for practitioners:
(a) A lawyer shall abide by a client’s decisions concerning the objectives of representation, subject to paragraphs (c),50 (d),51 and (e),52 and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive a jury trial and whether the client will testify.
The Comment to Rule 4-1.2 states that “[b]oth the lawyer and client have authority and responsibility in the objectives and means of representation.”
At the same time, a lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so. A clear distinction between objectives and means sometimes cannot be drawn, and in many cases the lawyer-client relationship partakes of a joint undertaking. In questions of means, the lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. Law defining the lawyer’s scope of authority in litigation varies among jurisdictions.
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(Services Limited in Objectives or Means)
The objectives or scope of services provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer’s services are made available to the client.
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The terms upon which representation is undertaken may exclude specific objectives or means. Such limitations may exclude objectives or means that the lawyer regards as repugnant or imprudent.53
Although the Rules of Professional Conduct seem to give the lawyer fairly wide latitude, the Disciplinary Rules of the Code seem to murk up the waters somewhat.
Rule 1.2(a) has no counterpart in the Disciplinary Rules of the Code. EC 7-7 states that in certain areas of legal representation not affecting the merits of the cause or substantially prejudicing the right of a client, a lawyer is entitled to make decisions on his own. But otherwise the authority to make decisions is exclusively that of the client . . . .” EC 7-8 states that “in the final analysis however, the . . . decision whether to forego legally available objectives or methods because of nonlegal factors is ultimately for the client . . . . In the event that the client in a nonajudicatory matter insists upon a course of conduct that is contrary to the judgment and advice of the lawyer but not prohibited by Disciplinary Rules, the lawyer may withdraw from the employment. DR 7-101(A)(1) provides that a lawyer shall not intentionally . . . fail to seek the lawful objectives of his client through reasonably available means permitted by law. . . . A lawyer does not violate this Disciplinary Rule, however, by . . . avoiding offensive tactics. . . .54
Carl E. Schaeperkoetter of the Office of the Chief Disciplinary Counsel was kind enough to research records of disciplinary complaints made under Rule 4-1.2 at the request of the author. Schaeperkoetter reports that Rule 4-1.2 “is seldom cited in the disciplinary process.”55 Schaeperkoetter provided this comment:
Of the approximately 1,100 admonitions issued from 1996 through 2004, our records show only 10 as citing Rule 4-1.2. Thus, the utilization of 4-1.2 is relatively insignificant when citing lawyers for disciplinary violations. I think it is quite likely that matters that might involve a 1.2 scope of representation issue often are decided on 4-1.3 diligence grounds or rule violations involving 4-1.15 on safekeeping client property and 4-1.16 on obligations upon termination of representation. I think these rules are somewhat more comfortable for both lawyers and disciplinary agencies to deal with than the objectives versus means ambiguities that are inherent in Rule 4-1.2.
With regard to the disciplinary admonitions relating to Rule 4-1.2, Schaeperkoeter made this analysis:56
Those opinions seem to fall in one of two general categories. The first is what ability the lawyer has to settle a lawsuit without express directive from a client, either because the client cannot be located, or because the contractual agreement has a provision for client settlement. *** In general, the theme for those opinions is that the lawyer should have explicit authority from a client before accepting settlement.
The second group of informal advisory opinions discussing 4-1.2 are ones involving the lawyer’s obligation to the client vis-a-vis a third party medical provider or prior attorney claiming a lien. *** The general rule seems to be that the lawyer is to honor the client’s directive unless there has been a specific agreement otherwise in which the lawyer has been involved.
Schaeperkoetter pointed out a 1996 admonition summary as an example of how the “objective” versus “means” distinction “has some overlap and can be difficult to define.” This admonition summary dealt with a lawyer who had agreed to an opponent’s request for a continuance as a matter of professional courtesy. However, the client had clearly indicated to the lawyer that he desired to keep the trial date for a specific reason. Under the facts of this particular case, a matter which might otherwise have been deemed to be a trial tactic, and thus a means issue, interfered with the client’s objective of promptly resolving the litigation. The attorney received an admonition. The lawyer’s action was deemed “inconsistent with the goals of the client” and thus violative of Rule 4-1.2.
VI. An example: Defense Counsel’s Role in the Plea Bargaining Process
The limits of the role of defense counsel with regard to plea decisions in a criminal case is an excellent example of the type of difficulties that can arise between a lawyer and a client in a case. Although a criminal defendant undoubtedly has the ultimate authority to enter a plea of guilty or not guilty to a charge, the duty of the defense counsel in this regard is somewhat controversial. Indeed, some professional criminal defense lawyers argue that it is the duty of counsel to coerce his client when counsel believes that the client is erroneously rejecting a reasonable plea offer.
Most defendants do not understand our system of justice and cannot be made to understand. They are, in the main, too optimistic: they believe that if their attorneys were willing to fight vigorously on their behalf, they might be acquitted. . . . [D]efendants may not fully realize the extent of the penalty that our system exacts for an erroneous tactical decision. For these reasons, a Chicago public defender observed, “A lawyer shirks his duty when he does not coerce his client,” and this statement suggests a fundamental dilemma for any defense attorney working under the constraints of the guilty plea system. When a lawyer refuses to “coerce his client,” he insures his own failure; the foreseeable result is usually a seriously and unnecessary penalty that, somehow, it should have been the lawyer’s duty to prevent. When a lawyer does “coerce his client,” however, he also insures his failure: he damages the attorney-client relationship, confirms the cynical suspicions of the client, undercuts a constitutional right, and incurs the resentment of the person whom he seeks to serve. The defense attorney’s lot is therefore not a happy one – until he gets used to it.57
The use of the term “coerce” here is no doubt hyperbole to some extent. Although there is no express constitutional or ethical requirement that defense counsel recommend a specific course of action, most criminal defense attorneys accept that professionalism requires providing recommendations as to appropriate courses of action in accordance with the best professional judgment of counsel, beyond merely informing the defendant of his or her legal options.58 “Good lawyering frequently demands that counsel attempt to persuade a client that taking certain action or making a particular decision is unwise or contrary to the client’s best interest. In offering advice, counsel is to avoid undue influence and manipulation but is to use ‘reasonable persuasion.’”59
Since discussions about possible guilty pleas typically take place prior to trial, it is a relatively simple matter for defense counsel to provide a letter to the defendant setting out his advice as to a plea and the reasoning behind his advice. The same approach would obtain for decisions about waiving a jury trial. In the case where a defendant either decides to testify in his own behalf or not to so testify, against the advice of counsel, it is customary to make a record out of the hearing of the jury by calling the defendant as a witness and putting counsel’s advice and the defendant’s final decision on the record.
Although the typical client would not participate in making closing arguments, criminal defendants do enjoy the right of allocution, permitting them to address the court at sentencing in their own behalf. Veteran Kansas City criminal defense lawyer James R. Wyrsch feels that allocution is an area ripe for clients to injure their own cause:
The client has an absolute right to speak on his behalf at sentencing but frequently says something that ends up either not advancing the client’s cause or actually increasing the sentence. I remember representing a prominent citizen at sentencing a number of years ago who according to court personnel increased his sentence because he told the judge the offense he had pleaded guilty to was a technical violation of the law. Most of the time a client is better off letting the lawyer speak on his behalf at the sentencing. At the very least I ask the client to let me approve his remarks before he speaks to the court. Perhaps the best approach is to submit the client’s statement to the probation office so that his allocution statement is part of the pre-sentence report adjustment which will result in a lower sentence for the client.60
A conscientious lawyer must strive to inform the client of the various technical, legal, and factual issues presented in the trial, secure the client’s consent to her approach to those issues which may be arguable, persuade the client as to the wisdom of counsel’s choices of strategy and tactics, and, in some cases, determine whether to overrule the client on strategic or tactical matters in the client’s own best interest.
VII. The Public Prosecutor and the Victim or Victim’s Family
Although a public prosecutor works directly for the state or federal government and has wide prosecutorial discretion, prosecutors have traditionally been sensitive to the desires of victims or a victim’s family. Indeed, state and federal legislation has mandated that prosecutors include the victim and victim’s family61 in the decision-making process, effectively making the victim more of a “client” for the prosecutor’s office.62
Veteran prosecutor Thomas Reddington of Hannibal explained Missouri requirements, as follows:
As a prosecutor, I have almost total discretion as to trial strategy, etc., so long as my actions are ethical. However, the Missouri Constitution (Article I, Section 32) sets out certain crime victims’ rights. Section 595.209, RSMo 2000, also sets out the rights of victims and witnesses in criminal cases. Both of these provisions required that the prosecutor “inform” and “confer” with the victims of crime and give the victims the right to be heard at significant court hearings in the case.
Section 595.209(4), RSMo 2000, sets out the rights of victims, including “the right to confer and be informed by the prosecutor regarding bail hearings, guilty pleas, pleas under Chapter 552, RSMo, or its successors, hearings, sentencing and probation revocation hearings and the right to be heard at such hearings, including juvenile proceedings, unless in the judgment of the court the interests of justice require otherwise.”
Prosecutor Reddington explained his practical approach as follows:
I have been called on, a number of times, to explain to a judge why I am making a particular sentencing recommendation which contradicts what a victim has requested in a hearing, but I have never altered my recommendation of what I think is the right disposition simply to get a victim to agree with me. I have many, many times explained my reasoning to victims, and usually they accept my judgment. I do not ever discuss trial strategy questions with victims, or witnesses. I make those decisions, with the input of my staff, alone. I also never consult with police officers about trial strategy. These things I believe to be the responsibility of the prosecutor.
Federal prosecutors are required by statute to consult with and inform victims (families) of the details of the case, as well as secure their agreement to plea bargains in some cases.64
VIII. Representing Corporate Clients
It has been suggested that a lawyer representing a large corporate client might effectively be required to accept and implement the wishes of the client, given that the client would no doubt have the wherewithal to easily change counsel if its wishes were not followed by the lawyer. In the case of a large, well-funded, corporate client, there would no doubt be numerous firms that would accept lucrative defense work even if the client were to exert virtually complete control over trial decisions. Therefore, outside counsel might have little practical choice but to implement the wishes of in-house counsel. However, when representing an individual, the lawyer might be expected to exert a good deal more control over strategic and tactical trial decisions. Representing insurance companies presents another set of issues regarding control of litigation. Not only must the insurance defense counsel respond to in-house counsel, but counsel also must respond to the wishes of the insured, who is rightfully considered the client in a case.65 One experienced Kansas City corporate attorney, who supervises outside counsel in handling company litigation, described his approach to the relationship between in-house and outside counsel.
When I engage litigation counsel, we discuss up front certain elements of the relationship. We provide written guidelines to outside counsel on what our expectations are. When we get into the case, I let the lawyer know if he or she is providing me too much or not enough detail. If the lawyer does something that I believe I should have been consulted on, I let him or her know that right away. In this way, over the course of the litigation, we are mostly on or at least near the same page. I expect counsel to know about the local legal scene and to be a competent discovery, motion and trial practitioner. If I decide he is not, I contact a managing partner of the firm (usually it’s a pretty large firm) and ask for someone to assist or for a new lawyer entirely. For my part, I commit to reviewing drafts and providing information on a timely basis, and to being generally available for case discussion. I do take the position that it is my case, not his, and in case of a dispute, I win.66
This corporate counsel took exception to the idea that counsel should be free to withdraw from representation if a disagreement as to strategy or tactics arises.
Some of the lawyers in your article say they would resign from the case if the client insists on a strategy they don’t feel comfortable with. I don’t have a problem with this if the lawyer is asked to do something illegal or unethical, but I do have a problem if it’s just a disagreement as to the proper course of action. Getting someone new familiar with a case that has complicated facts and many documents will cost a lot of money. I would ask the firm to provide a new lawyer and get him or her up to speed without cost to us. It seems to me that the lawyer has numerous ethical duties with respect to his client, one being to represent the client zealously and another not to take any action that would be against the client’s interest, like resigning and making the client scramble for representation.
Since both in-house counsel and outside litigation counsel are trained professionals and can be expected to want to have as much decision-making authority in the case as possible, this particular version of the attorney-client relationship would seem to clearly require more discussion and negotiation of both the means of the litigation as well as the ends.
IX. Playing Gotcha
Ironically, criminal defendants have been known to allege ineffective assistance of counsel based on counsel’s acquiescing to the defendant’s own wishes as to matters of trial tactics or strategy. As a general proposition, however, defense counsel following a defendant’s specific instructions as to a strategic trial decision will not be vulnerable to the client’s later complaint that he acted improperly in abiding by the client’s wishes.67 Indeed, some courts have held that counsel acted properly in allowing a defendant to make a determination as to a matter of trial strategy, even when counsel disagreed with the client’s decision.68 In Missouri it has been held that a lawyer acted properly in acquiescing to a defendant’s demands regarding presentation of his case even though the lawyer believed that the defendant’s strategy was unsound.69 However, in at least one case, it was held that a defense counsel provided ineffective assistance of counsel in acquiescing to the client’s demand that counsel call witnesses whose veracity he questioned.70
Johnny L. Richardson, an outstanding lawyer from Jefferson City, reports that he was once forced to withdraw from representing a client when an agreement could not be reached on a matter of trial strategy. The redoubtable Arthur H. Stoup of Kansas City also recounts incidents in which he was forced to withdraw as counsel for a client rather than implement a strategy against his legal judgment as to the client’s ultimate best interests. According to the ABA Annotated Model Rules of Professional Conduct, “The lawyer may also withdraw where the client insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.”71
Veteran defense lawyer James W. Benjamin of Kansas City reports that he does not recall ever having had a significant disagreement with a client over trial tactics or strategy. Benjamin says that he was always successful in getting the client to accept his guidance as to such matters. On the other hand, the very able John M. Kilroy, Sr., senior partner in the Kansas City firm of Shughart, Thomson & Kilroy, says that it has always been his view that the client has the right to help decide important trial issues, which philosophy has enabled him to avoid significant attorney-client disagreements.
X. Getting Out Ahead of the Problem
Well-known Connecticut trial lawyer Stewart I. Edelstein has written about the subject of lawyer-client decision-making and has this advice for practitioners:
Establish at the outset of the representation that you will do whatever is ethical and within substantive and procedural rules to accomplish the client’s objective (as long as the objective is not criminal or fraudulent). Establish, however, that you will decide all issues of pre-trial and trial strategy. Consider inserting language to this effect in your retainer agreements. By setting these parameters early on, you can minimize issues about who calls the shots during the heat of battle. You will then be able to make tactical decisions as the exigencies of combat may dictate.
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If your client insists on your making a tactical decision you believe imprudent, you must determine whether to withdraw from representation. It is better to withdraw than to make a strategic blunder, especially if the tactical decision may significantly affect the outcome of the case.72
Edelstein recommends that counsel consider himself “an independent decision maker, not a mere hired gun” when deciding important issues of trial strategy and tactics.
It certainly makes sense to have a frank discussion of decision-making responsibilities at the outset of representation. Some lawyers are more insistent on control of the litigation than others. Some clients are more insistent on control of the litigation than others. A frank exchange of expectations prior to the assumption of representation might well head off any later impasse over strategy and tactics. Experience teaches that it is often better to forego representation than to accept a role in the trial process which will ultimately lead to dissatisfaction on the part of the lawyer or the client.
XI. Conclusion
In both civil and criminal cases a balance must sometimes be struck between the client’s desires and trial counsel’s best professional judgment on trial issues. On the larger matters such as whether to settle out of court or plead guilty to an offense, the client clearly has the right to decide, after receiving appropriate advice from counsel. On matters of trial strategy and tactics, the trial lawyer traditionally has been given wide discretion in decision-making. The best case scenario is no doubt for the trial lawyer to fully disclose and explain his proposed trial strategy and tactics in advance so that the client will be well apprised of the trial lawyer’s thought processes. The client should certainly be given an opportunity for input on these matters, as it is the client’s freedom or property at issue. Should the trial lawyer determine to pursue a course of action not favored by the client, it would no doubt behoove the lawyer to make a record of his thought process, his advice, and the client’s wishes on the matter, as well as the course he intends to pursue at trial.
It has been stated that “[i]n the absence of a strong professional consensus regarding the proper allocation of decisionmaking power in the attorney-client relationship, [criminal] practitioners are given considerable latitude to decide for themselves how to resolve decisionmaking disputes with their clients.”73 It is difficult to draw a bright line rule as to exactly the matters the lawyer should decide and the matters on which he should defer to the client. The traditional ends versus means dichotomy can only take us so far. Circumstances will often dictate the practical resolution of disagreements on strategy and tactics. If the lawyer does not feel all that strongly about a particular trial issue and the client does, perhaps the lawyer should defer to the client’s wishes on that particular issue. The difficult question is whether the trial lawyer should insist on making decisions as to trial strategy or tactics when she strongly feels that the client has a mistaken judgment that will inure to his or her detriment. In certain cases where there is a significant attorney-client disagreement, the attorney might be permitted to withdraw from the case. Unfortunately, no authority has been found which provides guidance as to how attorney-client disagreements should be resolved short of a withdrawal by the attorney. Veteran Kansas City attorney Clyde G. Meise says that “all of us who try cases have faced [these] challenges . . . to which there never seems to be a perfect answer . . ..”74
Although some commentators have argued for a client-centered approach wherein the client makes all trial decisions after consultation with counsel,75 the writer believes that the traditional division of responsibility wherein the client decides the “ends” questions, such as whether to settle or enter a plea of guilty, and the trial lawyer decides all “means” questions, such as questions of trial strategy, tactics and procedure, is the best approach. Experience teaches that a timely, patient and thorough explanation of such matters will eliminate all but a few disagreements between client and counsel. Although it is the client’s freedom, reputation, or money at stake, the advocate clearly also has a professional stake in making certain that the case is presented in its most effective manner. As a matter of policy, it only makes sense that any disagreements between client and lawyer as to legal or proof issues be resolved by the person trained and experienced in deciding such questions.
It has been said that the man who acts as his own lawyer has a fool for a client. The client who refuses to accept the considered advice of a proven lawyer follows closely behind. As it has been said, a good lawyer will do his best to balance the client’s ability to make choices in his case with the lawyer’s duty to prevent clients from inflicting harm upon themselves.76
Footnotes
1 Glenn E. Bradford practices in Kansas City in the firm of Glenn E. Bradford & Associates, P.C., handling both criminal and civil cases.
2 The author would like to thank the following outstanding Missouri trial lawyers for reviewing this article and providing constructive criticism, advice and suggestions: Clyde G. Meise, Esq., Carl E. Schaeperkoetter, Esq., James R. Wyrsch, Esq., Gary L. Hoffman, Esq., Steven G. Emerson, Esq., Paul L. Herbers, Esq., Stephan J. Glynias, Esq., Arthur L. Stoup, Esq., John M. Kilroy, Sr., Esq., James W. Benjamin, Esq., Thomas Reddington, Esq., Matthew Whitworth, Esq., David F. Barrett, Esq., and Robert Russell, Esq. In addition, the author would like to thank Professor Gerald F. Uelmen of the California Bar for his valuable advice and suggestions.
3 Rodney J. Uphoff, Who Should Control the Decision to Call a Witness: Respecting a Criminal Defendant’s Tactical Choices, 68 U. Cin. L. Rev. 763, 834 (2000).
4 Id.
5 See generally, Douglas E. Rosenthal, Lawyer and Client: Who’s in Charge? (Russell Sage Foundation 1974).
6 Adela Rogers St. Johns, Final Verdict 394 (Doubleday 1962) (The life of Earl Rogers).
7 Alfred Cohn & Joe Chisholm, Take the Witness! 195-96 (The New Home Library 1943) (1934).
8 Geoffrey Cowan, The People v. Clarence Darrow, The Bribery Trial of America’s Greatest Lawyer 86 (Times Books 1993).
9 Adela Rogers St. Johns, Final Verdict 387-458 (1962). “‘You must trust me,’ he said to Darrow, ‘with what I know you value most in life, your usefulness to the cause of the poor and downtrodden. In our profession, there is always the saying that a man who acts as his own lawyer has a fool for a client. I don’t want that to happen in your case.’ He smiled engagingly at the big man sunk low in his chair, ‘I would confer with you, hear you at all times, use your gifts, but I must be chief counsel for the defense or – we shall lose.’” After some period of consideration, Darrow accepted the conditions of Rogers’ representation.
10 Id. at 411.
11 Id. Earl Rogers’ primary line of defense was based on testimony that Darrow came running across the street frantically waiving his hat at the precise time the bribe money was being paid over to the juror. Rogers argued that Darrow, as one of the country’s most astute criminal lawyers, simply would not have knowingly and consciously run himself right into the middle of the crime scene if he had indeed known of the bribe attempt.
12 Alfred Cohn & Joe Chisholm, Take the Witness 222 (The New Home Library 1943) (1934).
13 Id. “The last big argument between the two men was over the subject matter of Darrow’s address to the jury which was to close the defense. Darrow had evinced a desire to make such reference to the McNamara dynamiting that might be considered as condoning the offenses of the brothers. Rogers talked him out of it, arguing that the jury would never accept any such condonation and that it would react unfavorably to the defendant. Darrow finally consented to abide by Earl’s decision.”
14 “There was, of course, the nettlesome fact that Darrow had been found at the scene of the crime, a fact that was not yet known but soon would be. The public and the jury would surely want to know what he was doing there, why he was present when the bribe took place if he knew nothing about it. But Rogers pointed out that his presence at the scene of the crime might work to their advantage. After all, who would believe that so sophisticated a lawyer would have arranged for a bribe to be given on a busy street in downtown Los Angeles, in broad daylight? And, to add stupidity to foolishness, who would believe that he would have himself appeared at the scene?” Geoffrey Cowan, The People v. Clarence Darrow: The Bribery Trial of America’s Greatest Lawyer 291 (Times Books 1993).
15 Adela Rogers St. Johns, Final Verdict 406 (1962) (The life of Earl Rogers).
16 Alfred Cohn & Joe Chisholm, Take the Witness! 225 (The New Home Library 1943) (1934).
17 543 U.S. 175 (2004).
18 Id.
19 857 So.2d 172 (Fla. 2003).
20 Id. at 187
21 Fla., 543 U.S. at 187.
22 7 Am. Jur. 2D Attorneys at Law § 166 at 205 (1997; In re Marriage of Helsel, 198 Cal App 3d 332, 243 Cal Rptr 657 (Cal. Ct. App. 1988).
23 Marcy Strauss, Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy, 65 N.C. L. Rev. 315, 318-19 (1987) (footnotes omitted).
24 Fla., 543 U.S. at 187 (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)).
25 Taylor v. Ill., 484 U.S. 400, 417-18 (1988).
26 Id. Florida v. Nixon, 543 U.S. 175 (2004).
27 Jones v. Barnes, 463 U.S. 745, 751 (1983); Wainwright v. Sykes, 433 U.S. 72, 93 n1 (1977) (Burger, C.J., concurring).
28 State v. Johnson, 714 S.W.2d 752, 766 (Mo. App. W.D. 1986) (citing Jones v. Barnes, 463 U.S.745 (1983)).
29 Id. (citing Wainwright v. Sykes, 433 U.S. 72, 93 (1977)).
30 State v. Williams, 34 S.W.3d 440, 442 (Mo. App. S.D. 2001).
31 State v. Spiller, 778 S.W.2d 825, 826 (Mo. App. E.D. 1989).
32 Meredith Jowers, Student Commentary, Witnesses – Who Calls the Shots?, 25 J. Legal Prof. 175, 176 (2001).
33 United States v. Hearst, 466 F. Supp. 1068, 1087 (N.D. Cal. 1978).
34 Id. at 1088.
35Id. Henry v. Miss., 379 U.S. 443, 451-52 (Miss. 1965); Estelle v. Williams, 425 U.S. 501, 508 n3 (1976); Wainwright v. Sykes, 433 U.S. 72, 91 n14.
36 F. Lee Bailey & Henry B. Rothblatt, Fundamentals of Criminal Advocacy 44, § 58 (Brancroft-Whitney 1974).
37 Louis Nizer, My Life in Court 159 (Doubleday 1944).
38 Clement Haynsworth, Professionalism in Lawyering, 27 S.C. L. Rev. 627, 628 (1976).
39Rosenblum v. Jacks or Better of Am. W., Inc., 745 S.W.2d 754, 760 (Mo. App. E.D. 1988).
40 Id.
41 Mavrakos v. Mavrakos Candy Co., 223 S.W.2d 383 (Mo. 1949).
42 United States v. Zylstra, 713 F.2d 1332, 1339 (7th Cir. 1983).
43 Blanton v. Womancare, Inc., 696 P.2d 645, 650 (Cal. 1985).
44 See, e.g., Marcy Strauss, Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy, 65 N.C. L. Rev. 315, 318-19 (1987).
45 Gerald F. Uelmen, Lessons from the Trial: The People v. O.J. Simpson 50 (Andrews McMeel 1996).
46 Id.
47 Id.
48 Albert W. Alschuler, The Defense Attorney’s Role in Plea Bargaining, 84 Yale L. J. 1179, 1308 (1975).
49 For a general discussion of lawyer-client decision-making from a point of view of deciding ethical or moral issues, as opposed to strictly legal issues, see Robert F. Cochran, Jr., et al., Symposium: Client Counseling and Moral Responsibility, 30 Pepp. L. Rev. 591 (2003).
50 “(c) A lawyer may limit the objectives of the representation if the client consents after consultation.”
51 “(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.”
52 “(e) When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer’s conduct.”
53 Rule 4-1.2, Missouri Rules of Professional Conduct.
54 Rule 4-1, Scope of Representation and Code Comparison, Missouri Rules of Professional Conduct.
55 Letter from Carl E. Schaeperkoetter, January 11, 2005, in the possession of the author.
56 Schaeperkoetter wanted to make it known that he is speaking in his individual and personal capacity here and that the opinions expressed are his own and not necessarily those of the Office of the Chief Disciplinary Counsel.
57 G. Nicholas Herman, Plea Bargaining §3:03, p. 22 (Lexis Nexis 2004); Alschuler, The Defense Attorney’s Role in Plea Bargaining, 84 Yale L.J. 1179, 1310 (1975).
58 Id.; Anthony G. Amsterdam, et al., Trial Manual for the Defense of Criminal Cases, 201 (ALI-ABA Committee on Continuing Professional Education 1975).
59 Rodney J. Uphoff, Who Should Control the Decision to Call a Witness: Respecting a Criminal Defendant’s Tactical Choices, 68 U. Cin. L. Rev. 763, 803, n216 (2000) (citing Standards for Criminal Justice Standard 4-5.1, commentary at 198 (3rd ed. 1993)).
60 Email of October 3, 2005, from James R. Wyrsch to author, in possession of author. The author recently had a client in an allocution advise the court that he had unwittingly committed “a couple of additional felonies” since his conviction, those being voting and carrying shotguns around in his pickup truck. The frantic kicking of his ankle behind the podium did not serve to slow him down one bit.
61 “‘Victim’, a natural person who suffers direct or threatened physical, emotional or financial harm as the result of the commission or attempted commission of a crime. The term ‘victim’ also includes the family members of a minor, incompetent or a homicide victim.” Section 595.200(6), RSMo 2000.
62 See, e.g., Justice for All Act of 2004, 18 U.S.C. § 3771(a).
63 E-mail from Thomas Reddington. (On file with author.)
64 Justice for All Act of 2004, 18 U.S.C. § 3771(a). In an e-mail to author, Matt Whitworth, assistant United States attorney for the Western District of Missouri, provided the following summary of the Justice for All Act (on file with author).
A. Best Efforts to Accord Rights
A crime victim has the following rights under 18 U.S.C. 3771(a):
1. The right to be reasonably protected from the accused.
2. The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused.
3. The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.
4. The right to be reasonably heard at any public proceeding in the district court involving release, plea, [or] sentencing, or any parole proceeding.
5. The reasonable right to confer with the attorney for the government in the case.
6. The right to full and timely restitution as provided by law.
7. The right to proceedings free from unreasonable delay.
8. The right to be treated with fairness and with respect for the victim’s dignity and privacy.
***
C. Advice of Attorney
The prosecutor shall advise the crime victim that the crime victim may seek the advice of an attorney with respect to the rights enumerated above. (18 U.S.C. 3771(c)(2))
D. Enforcement Mechanisms for Victims
The Justice for All Act of 2004 provides crime victims with two mechanisms for enforcing the rights enumerated above.
1. Judicial Enforcement. Crime victims, or the government on their behalf, may move in federal district court for an order enforcing their rights. (18 U.S.C. § 3771(d)(3)) “The district court shall take up and decide any motion asserting a victim’s rights forthwith. If the district court denies the relief sought, the movant may petition the court of appeals for a writ of mandamus.” (Id.)
2. Administrative Complaint - A crime victim may also file an administrative complaint if department employees fail to respect the victim’s rights. The Attorney General must take and “investigate complaints relating to the provision or violation of the rights of a crime victim” and provide for disciplinary sanctions for department employees who “willfully or wantonly fail” to protect those rights. (18 U.S.C. § 3771(f)(2)).
65 The writer once was forced to forego further work for a large, national insurance company based on his perception that a particular individual in-house counsel was frequently insisting on what the writer deemed to be counterproductive trial strategies.
66 “(I do take the position that it is my case, not his, and in case of a dispute, I win.) A couple examples will illustrate. A couple of years ago, I attended a settlement conference in a federal court located in a small town. The judge himself sat with us at a table in the courthouse, and wanted to hear everybody’s story and something about the facts of the case. I did not think that our lawyer was doing a very good job presenting our facts, so I cut him off and did it myself. He did not like it much, and said so. I did not take that personally, however I asked the firm to provide a different lawyer, and they did. Another example. We have litigation in which I think that we are being too reactive and not enough proactive. I have asked our counsel to take on a line of discovery that will require him to be more aggressive. So far, he has dithered. If he does not act soon I am going to tell him specifically what I want him to do and by when I want him to do it.”
67 See, Rodney J. Uphoff, Who Should Control the Decision to Call a Witness: Respecting a Criminal Defendant’s Tactical Choices, 68 U. Cin. L. Rev. 763, 791 n156 (2000), and cases cited therein.
68 Id.
69 State v. Thomas, 625 S.W.2d 115, 123-24 (Mo. 1981).
70 State v. Lee, 689 P.2d 153, 158-59 (Ariz. 1984).
71 ABA, Annotated Model Rules of Professional Conduct (5th ed. 2003), Rule 1.16 (Client-Lawyer Relationship), Comment, Optional Withdrawal, p. 261, available at www.abanet.org/cpr/mrpc/mrpc_home.html. See, however, Nichols v. Butler, 953 F.2d 1550, 1552-54 (11th Cir. 1992), holding that a defense lawyer acted improperly in threatening to withdraw in the middle of trial in order to try to coerce the defendant into giving up his right to testify at trial in his own defense.
72 Stewart I. Edelstein, Lessons Learned: Determine Who is Calling the Shots, 34 Trial 78 (Nov.1998).
73 Rodney J. Uphoff, Who Should Control the Decision to Call a Witness: Respecting a Criminal Defendant’s Tactical Choices, 68 U. Cin. L. Rev. 763, 764 (2000).
74 Letter to author from attorney Clyde G. Meise, October 24, 2005, in possession of author.
75 Marcy Strauss, Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy, 65 N.C. L. Rev. 315, 318-19 (1987).
76 Rodney J. Uphoff, Who Should Control the Decision to Call a Witness: Respecting a Criminal Defendant’s Tactical Choices, 68 U. Cin. L. Rev. 763, 834 (2000).