The court of appeals recently addressed an issue that has divided courts elsewhere: whether defense counsel may present an insanity defense without the defendant’s consent. The court ruled that defense counsel may not do so, stating that “because the decision of whether to plead not guilty by reason of insanity is part of the decision of what plea to enter, the right to make that decision is a substantial right belonging to the defendant.” Continue reading
Tag Archives: attorney-client relationship
Criminal defendants, especially those sentenced to long prison terms, sometimes try to attack their convictions and sentences by claiming that their trial lawyers provided ineffective assistance of counsel. The state sometimes seeks trial lawyers’ help in answering these claims, and trial attorneys may want to help in order to avoid findings of ineffectiveness. At the same time, trial counsel may have ongoing duties of loyalty and confidentiality that make it inappropriate simply to open their files to the state. The State Bar just issued a proposed ethics opinion — Proposed 2011 FEO 16 — concerning how to balance these competing considerations. It’s available in full here. The Bar’s summary of the opinion is as follows:
Proposed opinion rules that a criminal defense lawyer accused of ineffective assistance of counsel by a former client may share confidential client information with prosecutors to help establish a defense to the claim so long as the lawyer reasonably believes a response is necessary and the response is narrowly tailored to respond to the allegations.
In other words, the Bar may soon rule that a defense lawyer may assist the state in responding to allegations of ineffective assistance of counsel, perhaps by discussing the case with a prosecutor or by preparing an affidavit summarizing the attorney’s view of the relevant facts. The Bar views such assistance as permitted under Rule 1.6(b)(6), which allows a lawyer to reveal otherwise confidential information as necessary to respond to allegations concerning the lawyer’s representation of a client. The proposed opinion does emphasize that “lawyers who choose to respond to claims of ineffective assistance of counsel . . . [must] respond in a manner that is narrowly tailored to address the specific facts underlying the specific claim. Simply put, the pursuit of an ineffective assistance of counsel claim by a former client does not give the lawyer carte blanche to disclose all information contained in a former client’s file.”
The proposed opinion expressly declines to follow an opinion on the same subject recently adopted by the American Bar Association. ABA Formal Opinion 10-456, available here, asserts that “it is highly unusual for a trial lawyer accused of providing ineffective representation to assist the prosecution in advance of testifying” at a hearing on collateral review. That’s an empirical question, and my experience is contrary to the ABA’s conclusion, but it’s probably neither here nor there as to the ethics issue. On the ethics issue, the ABA points out that while a claim of ineffective assistance waives the attorney-client privilege and work product protections as to information needed to respond to the claim, a defendant and his prior attorney may disagree about the scope of the implied waiver. Therefore, the ABA reasons, the attorney ought not disclose anything outside a judicial proceeding, during which the defendant will have an opportunity to object to disclosure. Nor is extra-judicial disclosure normally “necessary” to respond to the defendant’s claim, because many claims of ineffective assistance are dismissed on procedural grounds, while the remainder, in the ABA’s view, may be answered adequately in court. Thus, the ABA concludes that “it is highly unlikely that a disclosure in response to a prosecution request, prior to a court-supervised response by way of testimony or otherwise, will be justifiable.”
I welcome any thoughts about this issue generally and about the Bar’s proposed opinion specifically. If I receive substantive comments, either on the blog or by email, I’ll forward them to the Bar.
As a general rule, some decisions in the course of a criminal trial are made by the defendant and others are made by defense counsel. A defendant decides, for example, whether to testify and whether to plead guilty. Counsel typically decides strategy issues, such as which jurors to strike, which witnesses to call, and whether and how to conduct cross-examination. However, in North Carolina, the doctrine of absolute impasse affects these rules. Under this doctrine, when defense counsel and a fully informed criminal defendant reach an absolute impasse as to tactical decisions, the client’s wishes must control. The seminal North Carolina case on absolute impasse is State v. Ali, 329 N.C. 304, 404 (1991), which grounded the rule on the principal-agent nature of the attorney-client relationship. In this post I’ll address some frequently asked questions about the absolute impasse rule.
Are there any limitations on the rule?
Yes. The absolute impasse rule applies only when the defendant’s wishes with regard to trial strategy are lawful. State v. Williams, 191 N.C. App. 96, 104-05 (2008) (even if there was an absolute impasse as to jury selection tactics, defense counsel could not defer to the defendant’s wishes to engage in racially discriminatory jury selection).
What exactly is an absolute impasse?
In order for an absolute impasse to occur, the defendant and defense counsel must be locked in controversy regarding a matter of trial strategy, such as whether to strike a prospective juror. However, not all disagreements between a defendant and defense counsel rise to the level of an absolute impasse. Compare State v. Freeman, __ N.C. App. __, 609 S.E.2d 17, 21 (2010) (the defendant and counsel reached an absolute impasse over whether to accept or strike a juror), and State v. White, 349 N.C. 535, 567 (1996) (absolute impasse existed as to whether to present certain evidence), with State v. McCarver, 341 N.C. 364, 385 (1995) (“we find no indication in the record of ‘an absolute impasse’ between the client and the defense team as it concerned trial tactics”), State v. Wilkinson, 344 N.C. 198, 211-12 (1996) (citing McCarver and finding no indication in the record of an absolute impasse), and Williams, 191 N.C. App. at 99 (rejecting the defendant’s argument that an absolute impasse existed regarding jury selection; while the defendant was dissatisfied with the fact that he was required stand trial at all, he did not have a specific disagreement with counsel regarding the use of peremptory challenges). If the defendant defers to counsel’s decision, there is no absolute impasse. Williams, 191 N.C. App. at 103-04 (the defendant deferred to defense counsel’s decision).
What should defense counsel do in the event of an absolute impasse?
When an absolute impasse arises, defense counsel should make a record of the circumstances, his or her advice to the defendant, the reasons for the advice, the defendant’s decision, and the conclusion reached. Ali, 329 N.C. at 404. The better practice is to do this on the record in open court. Id. (defense counsel made such a record in open court).
What should the trial judge do in the event of an absolute impasse?
When an absolute impasse is brought to the trial judge’s attention, the judge must require defense counsel to abide by the defendant’s wishes. Failure to do so constitutes reversible error. State v. Freeman, __ N.C. App. __, 690 S.E.2d 17, 21-22 (2010).
Does this issue ever arise outside of the context of jury selection?
Yes. Although a number of cases deal with absolute impasse in the context of jury selection, see, e.g., State v. Ali, 329 N.C. 394 (1991); State v. Freeman, __ N.C. App. __, 690 S.E.2d 17, 21-22 (2010); State v. Mitchell, 353 N.C. 309, 323 (2001); State v. Buchanan, 330 N.C. 202, 207-08 (1991), the issue arises in other contexts such as:
- whether to present evidence, State v. White, 349 N.C. 535, 563 (1998) (where there was an absolute impasse between the defendant and his counsel over the presentation of mitigating evidence concerning domestic violence while the defendant was growing up, the trial court did not err by following the defendant’s wishes and prohibiting counsel from presenting the controversial evidence); State v. Grooms, 353 N.C. 50, 84-86 (2000) (the trial court did not err by finding that the defendant and defense counsel had reached an absolute impasse over whether to present mitigating evidence during the capital sentencing proceeding and by prohibiting defense counsel from presenting evidence in mitigation);
- examination of witnesses, State v. Brown, 339 N.C. 426, 434-35 (1994) (the trial court properly required counsel to abide by the defendant’s wishes regarding examination of witnesses);
- whether to move for a mistrial, State v. Green, 129 N.C. App. 539, 552 (1998) (trial court followed the defendant’s wishes regarding whether to move for a mistrial), aff’d, 350 N.C. 59 (1999) (per curiam); and
- with regard to jury instructions, State v. Brown, 339 N.C. 426, 434-35 (1994) (trial court properly required counsel to abide by the defendant’s wishes regarding jury instructions).
For some time, I’ve been meaning to do a post about attorney-client confidentiality in extreme circumstances. For example, in this Chicago case, defendant X, who was charged with one murder, admitted to his lawyers that he had also committed another murder, one with which defendant Y had been charged. There was other evidence in the second case that lined up with the confession, so the lawyers representing defendant X were certain that defendant Y was completely innocent. But they watched as defendant Y was tried capitally, convicted, sentenced to life in prison, and served 26 years. Meanwhile, defendant X was convicted of the first murder and also sentenced to life in prison. Only after defendant X died did his lawyers come forward with the information that defendant Y was innocent and that defendant X was responsible for the murder. Defendant Y has since been formally exonerated, as described here.
The lawyers who represented defendant X said they consulted with “legal scholars, ethics commissions, [and] the bar association” and were consistently told that the ethics rules prohibited them from disclosing what their client had said. And, of course, Rule 1.6 does provide that “[a] lawyer shall not reveal information acquired during the professional relationship with a client” unless the client consents or one of the Rule’s exceptions apply. The only exception that could have any application here is set forth in Rule 1.6(b)(3), “to prevent reasonably certain death or bodily harm.”
Some of you may recall that a similar situation arose in North Carolina several years ago, when a North Carolina lawyer disclosed a client’s confidence after the client’s death in an effort to exonerate the client’s co-defendant. The lawyer’s theory, apparently, was that when an innocent man is convicted of a crime, his incarceration amounts to “bodily harm” within the meaning of Rule 1.6(b)(3). Although at least one legal scholar criticized that reasoning, the State Bar reportedly dismissed a complaint against the lawyer, suggesting that the Bar viewed the lawyer’s actions as reasonable.
According to this New York Times story, the Virginia State Bar likewise declined to sanction a lawyer involved in a similar case. And apparently at least one state – Massachussetts – expressly provides for a confidentiality exception when necessary “to prevent the wrongful execution or incarceration of another.”
The dilemma is pretty poignantly summed up by these opposing quotes from the Chicago case:
- From the innocent defendant: “Is (a) job more important than an individual’s life?”
- From one of the guilty defendant’s lawyers: “Should I do the right thing by Alton Logan and put my client’s neck in the noose or not? It’s clear where my responsibility lies and my responsibility lies with my client.”
I don’t know the right answer, but I’m interested in trying to harness the wisdom of crowds, so I’m going to try to put up a poll immediately below. I’ve never done a poll before, so bear with me if there are any technical difficulties.
Who has the final say about whether to strike a prospective juror – the defendant or his lawyer? That’s the question addressed by the court of appeals today in State v. Freeman.
The defendant in Freeman was charged with murder. During jury selection, the defendant and his attorney disagreed about whether to use a peremptory strike on a prospective juror. The attorney wanted to keep the juror, in part “because I generally don’t like using my last strike when we don’t know who else we’re going to get.” The defendant wanted to strike the juror.
Defense counsel informed the trial judge of the impasse, and the judge said “I don’t see how that’s my issue. You consult with your client and you decide how to proceed.” The lawyer decided to keep the juror. The case proceeded, the defendant was convicted, and he appealed. The court of appeals held that when a lawyer and a client reach an impasse over a tactical decision, the client’s wishes must control. Because the defendant’s wishes were overridden by the lawyer in Freeman, the court concluded that the defendant was effectively denied his full complement of peremptory challenges. Under State v. Locklear, 145 N.C. App. 447 (2001), that requires a new trial.
The court’s explanation of how impasses over tactics must be resolved was based on State v. Ali, 329 N.C. 394 (1991), another jury selection case. In Ali, the defendant wanted to accept a prospective juror whom his attorneys wanted to strike. After noting the conflict, the attorneys yielded to the defendant’s wishes and the prospective juror was accepted. On appeal, the defendant argued that he was deprived of his Sixth Amendment right to the assistance of counsel when his attorneys yielded to him on a tactical issue. The state supreme court held otherwise, finding that although attorneys normally make tactical decisions, the client has the ultimate authority over them when there is an impasse, based on “the principal-agent nature of the attorney-client relationship.” See also State v. Mitchell, 353 N.C. 309 (2001) (where defense counsel wanted to attempt to rehabilitate a prospective juror but the defendant did not, it was proper for counsel to yield to the defendant’s wishes).
Without questioning Ali or Freeman on their facts, I wonder how far the agency rationale extends. Taken to its logical conclusion, it raises some difficult questions. For example, the Ali line of cases suggests that the ultimate authority over which questions to ask a witness belongs to the defendant. That’s a tactical decision, after all. Cf. State v. Brown, 339 N.C. 426 (1994) (noting that the defendant “held strong opinions about trial strategy, jury instructions, and the examination of witnesses” and holding that it was proper for defense counsel to defer on these issues). But what if the client insists on asking an ethically improper question, such as one designed solely to embarrass the witness? What if the client insists on asking a question that is clearly not in the client’s interest? Something along these lines apparently happened in Brown. Should the lawyer acquiesce, risking professional discipline or a later finding of ineffectiveness? Move to withdraw? See generally Rule of Professional Conduct 1.2 cmt. 2 (suggesting, without mandating, that a lawyer withdraw when an impasse is reached over matters of tactics). Should the court allow the defendant to pose such a question himself, if counsel refuses? In Ali, the court said that when there is an impasse, the lawyer should make a record of it and then yield to the client. That doesn’t seem sufficient if the client’s choice is not merely contrary to the lawyer’s preference, but actually improper or unreasonable.
As an aside, most authorities outside the state seem not to have endorsed the agency rationale to the extent that our courts have. Specifically with respect to jury selection, the majority rule appears to be contrary to Ali and Freeman.
- “Courts have found that decisions concerning . . . whether . . . to strike a prospective juror . . . are strategic decisions for counsel to make.” Peter A. Joy & Kevin C. McMunigal, Do No Wrong: Ethics for Prosecutors and Defenders 81 (2009).
- “Strategic and tactical decisions should be made by defense counsel . . . [including] what jurors to accept or strike.” ABA Standards for the Defense Function 4-5.2 (1993).
- “Decisions on selection of a jury are among the many entrusted to counsel rather than to defendants personally. . . . A patient can decide whether to undergo an operation, but once that decision has been taken the surgeon is in charge of implementation; so too with lawyers and trials.” United States v. Boyd, 86 F.3d 719 (7th Cir. 1996).
For an interesting discussion of some related issues, see Robert E. Toone, The Incoherence of Defendant Autonomy, 83 N.C. L. Rev. 621 (2005).
Defense lawyers, what are your thoughts? Does the idea of deferring to your client’s wishes on tactical issues make you uneasy? Have you been in situations where it was problematic? Or do you think the concerns raised above are overblown?
Category: Procedure, Uncategorized | Tags: ali, attorney-client relationship, ethics, freeman, impasse, jury selection
