Who’s Driving the Bus, Client or Lawyer?
Who makes the decisions in your case – you or your defense lawyer?
The answer depends on the situation, but a good rule of thumb is that the client is in charge. With some exceptions, your attorney is working for you and must consult with you before taking any actions in your case.
Which is why the Broward County, Florida school board was more than a little upset when they discovered through media reports that their attorney had filed a motion to hold a local newspaper in contempt of court…
The school board had sent records to the newspaper that were “digitally redacted,” but it turns out when they copied and pasted the records into another document the redactions disappeared – so, of course, the newspaper published the unredacted version.
The school board’s attorney then drafted, filed, and attempted to argue a motion to hold the paper in contempt of court.
As it turns out, not all school board members were on board with strong-armed tactics that might violate a newspaper’s First Amendment rights, and their attorney did not consult them before drafting, filing, and arguing the motion.
What do SC’s Ethics Rules Say About Whether Attorney or Client Makes Decisions?
Client-centered representation is not a buzz-word. It’s not an option or a style of representation that an attorney can choose. Consulting with, listening to, and advocating for your client is the very heart of the attorney-client relationship, and it is required by the ethics rules.
Who decides whether you accept a plea offer? Whether you go to trial? Who decides what motions to file? The answers depend – there are some decisions that are exclusively the client’s decision, and there are others where the attorney may have the final answer, but they must still consult with their client…
Scope of Representation
Rule 1.2 says that the scope of representation, or the objective of the representation, is decided by the client and that the attorney must consult with the client as to the means that will be used to achieve the objective.
An attorney can limit the scope of representation when reasonable – but, it must be done with the client’s consent and it needs to be in writing so that there is no confusion.
An attorney must also decline to assist in conduct that is criminal – a defense lawyer’s job is to help you defend against a criminal prosecution, not to help you commit future crimes. But, the attorney can explain to a client the legal consequences of future decisions the client is contemplating and assist a client to understand the law and how it may limit their future conduct.
Communication with Clients
It seems basic, but one of the most common complaints against attorneys is that they do not communicate with their clients. Failure to communicate is also one of the most common sources of grievances filed against attorneys…
Rule 1.4 says that a lawyer must:
- Promptly inform their client of any decision that requires their informed consent;
- Consult with their client about the means by which the attorney intends to achieve the client’s objectives;
- Keep the client informed about the status of their case; and
- Consult with the client about the ethical limitations that govern attorneys when the client expects advice that is not permitted by the Rules of Professional Conduct.
The attorney must inform the client before taking action – for example, if your criminal defense lawyer receives a plea offer, they cannot accept the plea offer and schedule a hearing date unless they have talked to you, explained the plea offer, the potential sentences, and the evidence in your case, and you make the decision to accept the plea offer.
What Decisions Must Be Made by the Client?
There are many decisions that an attorney cannot make – it is the client’s case and only the client can make the decision. For example:
- Whether to plead guilty or ask for a trial;
- Whether to accept a plea offer or continue negotiations;
- Whether to plead not guilty by reason of insanity;
- Whether to waive a jury trial;
- Whether to testify at trial; and
- Whether to appeal a conviction.
Basically, if the client is waiving an important right, or if the client is telling the attorney what their goals are in the representation, the attorney can make a recommendation and explain the law, but the client makes the final decision.
What Decisions Can Be Made by the Attorney?
There are also decisions that are left to the defense lawyer, after consultation with their client. Most decisions that are a matter of trial strategy, for example, are left to the attorney’s expertise:
- Whether to file motions and which motions to file;
- What witnesses to call at trial;
- The contents and argument in an appellate brief; or
- Negotiating strategies.
This makes sense – when a client is demanding that I file a motion to dismiss for a speedy trial violation when their case is only six months old and they have requested multiple continuances, I can’t file the motion. Similarly, if a client demands that I make an argument in a motion or brief that is not supported by the law, I can’t do it.
It’s still my obligation to discuss the motion or other tactic with my client, explain the law to them, consult with them, and abide by their wishes whenever possible, but the attorney must have the final say in some matters.
Communication is Key
Clients are rarely upset when their attorney takes the time to communicate with them, listen to their concerns, and explain if there is an action that cannot be taken because it is barred by law or the ethics rule.
Although the final decision as to which motions to file ordinarily rests with the attorney, there are exceptions – some motions may affect third parties and the client should absolutely have a say in the matter.
Just as an attorney may not be permitted to follow a client’s instruction to “harass” or “destroy” a witness or opposing litigant, the client should also have a say when an attorney’s actions will have a harmful effect on a third party.
For example, if I intend to file a motion asking the Court to hold a newspaper (or anyone) in contempt of court, an action that could result in jail time or substantial fines and bad publicity for my client, I had better consult with my client and make sure they are on board before filing the motion and arguing it to the court…
Criminal Defense Lawyer in Charleston, SC
My pledge to my clients is that I will listen and respect your wishes as to your goals in your case. I will strive to keep all my clients updated and informed at every stage of their case, and, if a client feels neglected, I want to know.
If you have been arrested and charged with a crime in the Charleston, Dorchester, Georgetown, or Myrtle Beach, SC areas, call now at (843) 808-2100 or email us through our website to speak with a Charleston, SC defense attorney today.