Varsava et al. on Allocating Authority Between Lawyers and Clients

Thursday, August 23, 2018

 

In May 2018, the Supreme Court issued its opinion in the case of McCoy v. Louisiana, holding that defendants have a constitutional right to maintain their innocence at trial. Under McCoy, lawyers may not concede their clients’ guilt during trial when their clients insist on maintaining innocence, even if doing so would be a reasonable tactical decision. In this paper, we show how the case implicates an array of common problems concerning lawyer-client disagreement, and we argue that the Model Rules of Professional Conduct fail to provide adequate guidance in this area. In particular, we identify a tension between the importance that both the Model Rules and the case law place on client control over the “fundamental objectives” of representation, and the supposed remedy of lawyer discharge and withdrawal in the event of irresolvable disagreement between lawyer and client. We propose a set of revisions to the Model Rules that address the ethical and practical concerns we elaborate. 

These revisions aim to be responsive to: 

(1) the principle of autonomy that the McCoy decision prioritizes, 

(2) the dynamic and sensitive relationships between criminal defense attorneys and their clients, and 

(3) the administrative realities of trial courts. In the absence of clear or comprehensive constitutional doctrine, we would hope that attorneys and courts could turn to the Model Rules for sound and effective guidance in the domain of lawyer-client disagreement and dispute resolution.

http://lawprofessors.typepad.com/crimprof_blog/2018/08/varsava-et-al-on-allocating-authority-between-lawyers-and-clients.html

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Varsava et al. on Allocating Authority Between Lawyers and Clients curated from CrimProf Blog