It is a rare day when the U.S. Supreme Court issues an opinion that, in part, has an impact on lawyer ethics. On May 14, 2018, a 6 to 3 decision in McCoy v. Louisiana addressed the Sixth Amendment right to counsel but spoke to Model Rules of Professional Conduct Rule 1.2(a):
Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle 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 jury trial and whether the client will testify.
In McCoy, retained lawyer Larry English, who replaced appointed counsel, was convinced that client Robert McCoy, who was charged with capital first-degree murder of his estranged wife’s mother, stepfather and son, would be convicted. English’s trial strategy was to concede that McCoy had committed the three killings, but argue that the defendant did not have the mental state necessary to form the required specific intent. Further, if convicted on the first-degree murder counts, English could argue against the death penalty during the penalty phase due to McCoy’s mental and emotional issues.
McCoy, however, rejected this strategy. He demanded that English present an unsubstantiated alibi defense contradicted by physical evidence. McCoy sought to dismiss English, find substitute counsel and/or represent himself. English sought to withdraw. The trial court denied all and ordered English to represent McCoy at trial.
However, McCoy continued to object to English’s presentation of the case and, when he testified, he denied the killings and presented his unsupported alibi defense. The jury returned a guilty verdict on three counts of first-degree murder and, despite the serious mental and emotional issues, also returned three death verdicts. On appeal with new counsel, the Louisiana Supreme Court affirmed.
On certiorari, the U.S. Supreme Court focused upon the Sixth Amendment. The right to counsel includes the right to defend as the client decides and is a personal right. While trial management decisions are “[t]he lawyer’s province…some decisions, however, are reserved for the client — notably, whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal.” McCoy v. Louisiana, No. 16-8255, slip op. at 6 (U.S. May 14, 2018). This principle is encompassed in Rule 1.2(a) quoted above that the Court also quoted, a “lawyer shall abide by a client’s decisions concerning the objectives of the representation.”
This distinction between substantive decisions and tactical decisions in criminal representation is illustrated in the Annotated Model Rules of Professional Conduct, 8th ed. “A lawyer’s duty under Rule 1.2(a) to defer to certain client decisions in a criminal matter is a necessary corollary of a criminal defendant’s constitutional right to make decisions regarding matters that are ‘fundamental’ or ‘substantive’ because they derive from constitutional guarantees.” AMR 8th p. 38. Specifically noted is U.S. v. Teague, 953 F.2d 1525 (11th Cir. 1992): “It is important to remember that while defense counsel serves as an advocate for the client, it is the client who is the master of his or her own defense.”
The ABA Standards for Criminal Justice: Defense Function, Standard 4-5.2 Control and Direction of the Case, subparagraph (a) states: “Certain decisions relating to the conduct of the case are for the accused; others are for defense counsel. Determining whether a decision is ultimately to be made by the client or by counsel is highly contextual, and counsel should give great weight to strongly held views of a competent client regarding decisions of all kinds.” Subparagraph (b) is more specific:
The decisions ultimately to be made by a competent client, after full consultation with defense counsel, include:
(i) whether to proceed without counsel;
(ii) what pleas to enter;
(iii) whether to accept a plea offer;
(iv) whether to cooperate with or provide substantial assistance to the government;
(v) whether to waive jury trial;
(vi) whether to testify in his or her own behalf;
(vii) whether to speak at sentencing;
(viii) whether to appeal; and
(ix) any other decision that has been determined in the jurisdiction to belong to the client.
It is easy in hindsight to criticize English for his legal tactics and strategy in attempting to save McCoy’s life. The U.S. Supreme Court recognized “Larry English was placed in a difficult position; he had an unruly client and faced a strong government case. He reasonably thought the objective of his representation should be avoidance of the death penalty.” McCoy v. Louisiana, No. 16-8255, slip op. at 13 (U.S. May 14, 2018).
It is hard not to think of at least two other cases where the clients’ instructions were followed ethically despite the harm caused and the approbation suffered by the lawyers. Most recently, in the Alton Logan case in Chicago, two lawyers preserved the confidentiality of the confession their client had made about committing a murder until after his death—as he had instructed. The lawyers’ ethical and legal inability to reveal the client’s confession left Alton Logan in prison for 26 years for a murder he did not commit.
Years ago, many law school curricula included the story of Frank Armani. Armani and co-counsel Francis Belge were assigned to a client who confessed to committing earlier rape and murder of a missing teenager and another woman. He disclosed where the bodies had been dumped. Armani and Belge visited the bodies to confirm the information. Armani then sought to negotiate a global plea bargain with prosecutors for life sentences in lieu of the death penalty. The lawyers, however, refused to reveal the information until the defendant did so at his trial. This outraged the community and the teen’s family, and lead to attempts by the prosecutor to criminally prosecute the lawyers and by the family to file disciplinary complaints—neither of which were successful.
One lesson these cautionary ethical conundrums reinforce is that a lawyer cannot solve every problem nor save every client. As British comedic actor Patrick Murray said, “A lawyer will do anything to win a case, sometimes he will even tell the truth.” But as the McCoy case demonstrates, a lawyer’s obligation is not to “win” …or even “tell the truth.” A lawyer’s obligation is to comply with the rules of ethics – be they the Model Rules of Professional Conduct or the local jurisdictional equivalent. The rules are adopted to protect the client and make the judicial system function. As the McCoy case shows, not even telling the truth is always ethical or constitutional when that is not what the client demands — even if that means the client is unlikely to “win.”