In response to my previous post on lawyer misadvice, a longtime PD and friend of the blog asks: when does counseling end and coercion begin? How hard can you push the client to make a certain decision before it crosses the line? To be sure, it is an important question and a difficult one.
The choices that have to be made about all the “big stuff” – whether to take an offer, whether to testify, whether to waive a jury trial – are the client’s domain. We get to unilaterally handle the “other stuff” – what witnesses to call, what questions to ask, what tact to take.
The reality, however, is that most clients will do what their lawyers tell them to. Clients want this and lawyers recognize this: “Ultimately, you have to decide whether to take this deal or not, but…”
This is an awesome power in our hands – which is why I argue that we must exercise it with the greatest care and in the most informed manner possible – that can easily corrupt us and blur the lines between giving advice and making decisions.
There’s a reason that we wield this power: we are the ones trained in the ways of the system, we have the experience and most importantly, the client can never seem to get out of his own way.
So how hard do we push to convince the client to do A when he seems set on doing B, which is detrimental to him?
Clearly, the outer limits of the spectrum are set: one should not take a hands-off approach and merely lay out the alternatives for the client and one cannot make unilateral decisions on the client’s behalf, either by lying or obfuscating or keeping the client in the dark.
It’s the vast expanse in between that’s tricky. When does forceful and repeated advocacy cross the line into impermissible arm-twisting? In true lawyerspeak, I think the answer depends.
It depends on the client himself, the event that you’re counseling the client about and the level of confidence you have in the conclusion you’ve reached.
Take, for example, the decision to testify. It is indisputably the client’s. Yet, most lawyers will tell you that unless the client is compelling, it is usually a bad idea. Clients, on the other hand, will usually have very strong feelings about whether they want to testify. I’ve yet to encounter one who is ambivalent. They either are adamant that they have to take the stand and present their “side” of things, or are experienced enough to know that, in their case, it would be a terrible idea.
If their conclusion is the same as yours, great. If it isn’t, can you do anything to get the client to change his/her mind? Apprising them of the obvious downsides to testifying is a start: their record, lack of any concrete testimony, demeanor, etc. But what if the client is oblivious to these problems or chooses to ignore them? Do you persist? Do you try a different tact?
I don’t know the answer to that question. I believe that if I am convinced it would be a terrible idea for the client to testify, I would state it in no uncertain terms. I would probably have another lawyer in my office talk to the client to provide a second opinion. I may even do a mock direct/cross of the client to demonstrate the pitfalls. Is that pushing too hard? I don’t know. I don’t think so, but others may disagree.
If, after all of that, the client still persists, well, the only thing you can do is damage control.
Getting back to the original question in this post: how hard is too hard? Put another way, how do you know when to stop?
The answer, I think, is this: when you’re convinced that the client fully understands everything that you understand. Only when you are confident that you have explained all the things that led to you to the opposite conclusion, can you let the client make the “wrong” decision.
Again this depends on the client. For some, it may take one meeting. For others, it may take 5. But this is the only way I can put into words the elusive and shifting requirement of effective representation.
You may have a different view. Tell me about it in the comments.
This is one of the most important issues we deal with as criminal defense lawyers. I remember learning as a public defender that I could convince a client to either go to trial or plea, for the most part. That’s when I realized, what you said, the importance of this “awesome power.” Over the last 15 years, I’ve gone back and forth on this – I for a while thought my best work was done by just giving the options and leaving it up to the client. You think this is wrong, and I agree.
I believe our clients see us as not merely people who lay out their options, but people from which to seek advice on those options. So now I make a determination on the strengths and weaknesses of the case and then say how I feel. If my client is facing a video tape, 12 witnesses, a signed confession and fingerprints, my responsibility is not to just tell him what will happen if he goes to trial and wins or loses, but that I believe the likelihood of a jury saying he didn’t do it, is not good. Conversely, if I feel we have a “good triable case,” I advise of that too.
I think when we merely say “here’s what could happen,” without putting ourselves into the case by providing our opinion based on experience, we abdicate our role.
However, if a client says they don’t care if Jesus, Moses, and the Pope can finger them for the crime, they are going to trial, we create a divisive relationship with our client by pushing them to plea.
Clients sense fear in their lawyers, and lawyers need to know when the client has made their final decision.
Excellent points, including one I meant to include in the post but forgot, so thanks for bringing it up.
The danger of alienating the client and losing their trust is one we must keep in the back of our minds as we advise them. That, undoubtedly, is the worst thing that could happen, especially if you’re at the point where the client has to decide whether to plead or go to trial.
It takes a lot of skill to convey to the client the wisdom of doing something they don’t want to do and yet not piss them off. I’ve failed at maintaining that balance far more than I care to remember.
The Trial Lawyer’s College (TLC) notion of “if you show me yours, I’ll show you mine” might help to convey our concerns in a way that alerts the client, but does not intimidate. If you speak to the client in terms of your fears, and let him/her address them.
When information can be intimidating, i.e., the Jesus, Moses and the Pope are comin’ in, admitting you are worried about their testimony and appeal to the client for advice, some clients can reflect at “arms length” and understand serious consequences to their actions.
It does happen that a client (or two, or three), will admit “Now, I understand why the state is pursing, offering, persisting, etc…, but I am going testify, go trial, etc…” It’s okay, because they own the decision. It becomes another issue good lawyers have to address.
It is not always easy, but allowing an informed client to own their prerogative, can be satisfying, and is humane. Doesn’t make our life easier, but, “this is the life we chose.”
MJI
As a paramedic, we have similar concerns with a patient refusing transport and/or treatment.
I believe that we need to convince ourselves that the patient/client has enough understanding to make an informed decision. Unfortunately, in EMS we do not seem to do a good job of getting the EMT/paramedic to understand what they need to explain or to get them to understand what informed consent is or why it is important.
If the patient does not have accurate information about the risks and benefits of refusal and the risks and benefits of treatment, how can a competent patient make an informed decision?
I know that there are plenty of people in EMS I would not trust to make decisions for me. I certainly wouldn’t want them telling me I may not make decisions for myself. There is too much that we do that is done with the intent of protecting the EMS agency from liability, rather than because it is best for the patient.
I’ve often said that some of the best closing arguments ever given are never heard by a jury as they occur in lock-up just before the commencement of trial. It is indeed an awesome power that most experienced defense attorneys hold when you do get to the point where you believe you can talk someone into damn near anything. And the balancing act necessary to maintain a decent attorney-client relationship in the face of intense plea discussion is difficult at best. In large measure, however, and thankfully so, I feel pretty comfortable in the knowledge that in the vast majority of cases, I can make a client understand that which is in his or her best interest. It’s also a fact that most of the people whom I’ve failed to get through to end up the worse for it…
I believe we are both lawyers and counselors. Some APDs have advised me that I should not provide “guesstimates” about the chance of success (or failure) at trial, or tell anyone they might not actually get the maximum if they lose at trial, or tell them what I would do if in their situation. I think that is being a wimp and doing a disservice to the client. Yes, make sure your client knows what COULD happen, but be a true counselor, too! Give an honest assessment of the situation, not one that will simply make your life easier, i.e. get the plea deal and close the file.