H. Michael Steinberg has 36 years of experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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Lawyer-Client Decisions in Criminal Cases -Who Decides What? – A Guide

Lawyer - Client Decisions in Criminal Cases -Who Decides What? - A GuideBy H. Michael Steinberg Colorado Criminal Defense Lawyer

Introduction

If you are charged with a crime in Colorado understanding the exact nature of the professional relationship between you and your Colorado criminal lawyer is important to achieving the best possible result in your case. Turning over the reigns and placing complete trust in your lawyer can be very difficult at this frightening time in your life.

The ethical rules that govern the attorney-client relationship are typically not the topic of discussion as your criminal case moves forward. The purpose of this article is to add some clarity and answer some serious questions as to who makes which decisions in this important relationship.

A common source of conflict is a misunderstanding of the relative authority between the attorney and the client. One example asks the question, how much control does the client have in making key tactical decisions on how to defend the case.  Knowing the answer to that and other questions is critical to the goal of the relationship – achieving the best possible result.

The Captain of the Ship Metaphor – Two Captains but Different Parts of the Ship

You may believe that because you are paying the fee for your privately retained lawyer, you have the right to make all of the decisions regarding the defense of the case. While this is understandable, it is not the case.

The Lawyer as Captain

In the broadest possible terms: decisions relegated to your lawyer are those decisions related to strategy or tactics and technical questions related to procedure. These are decisions that are made by the defense attorney without a requirement of the client’s consent especially when there is no time to consult.

Stated differently, certain overarching decisions at key stages of the case belong to the client/defendant and are made after thoroughly consulting with the attorney, while other strategic decisions can be made by defense counsel without the need to consult the client.

Below are some examples of a lawyers’ strategic/tactical decisions:

(1) Which witnesses to call.
(2) Whether and how to conduct cross-examination.
(3) Which jurors to accept or strike from a jury panel.
(4) What motions to make before or during trial.
(5) Numerous other strategic or tactical decisions (i.e., such as the theory of the case and trial strategy).

The reasoning underlying this allocation of power is that lawyers are trained to and often need to make tactical and strategic decisions on behalf of their clients quickly and efficiently. To mandate that the client/defendant has the right to direct strategic and tactical decisions undermines the ability of counsel to present the appropriate arguments and make the appropriate tactical decisions in accordance with the lawyer’s professional evaluation of the case.

Strategic decisions that are not “fundamental to the defendant’s right to a fair trial,” (see below) do not require the client/defendant to consent. To allow a veto over every detail on how a criminal defense lawyer will carry out the representation can easily cause “the ship” to run aground.

Trust in this context means deferring to the attorney where the lawyer’s special knowledge, training, and skill.

The Client/Defendant as Captain

Key decisions that are exclusively assigned to and belong to the client/defendant and cannot legally be made by the lawyer include the following decisions:

(1) What plea to enter.
(2) Whether to waive a jury trial.
(3) Whether to testify on his or her own behalf.
(4) Whether to appeal.
(5) Whether to represent himself or herself or hire a lawyer/request an appointed lawyer.
(6) The objectives of the representation.

No Key Decision Should Ever be Made in Isolation

Having assigned these broad categories to each of the ‘captains’ – no important decision should be made in isolation and every important decision should only be made with a thorough consultation. Fully consulting your lawyer and talking through your options before making every key decision is the hallmark of the attorney-client relationship.

In the final analysis, however, the defendant has the right AND the obligation to make the most critical decisions- those key decisions are always clear and include the decision of whether to accept a plea bargain or go to trial….whether or not the lawyer consents or agrees.

Fundamental to the attorney-client relationship is the doctrine of “agency.” The lawyer is the agent of the client, has a fiduciary duty to his or her client, and is expected to carry out the wishes of the client regarding those decisions that are unquestionably the client’s to make.

The Fiduciary Model and the Participatory Model of Lawyer-Client Relations

A further discussion of the mechanics of the working relationship between the lawyer and the client may be helpful.

While the stark lines of the lawyer-client relationship have been established, a true allocation of the careful decision-making that must occur at different stages of a criminal case may depend on a number of other criteria

The Trust Quotient

In criminal cases, client/defendants typically fall into one of three types,’ depending on the client’s trust tolerance in their attorney.

This is commonly called the “trust quotient.”

Type 1- The “Total Relinquishment of Control” Client – these clients want the lawyer to make all the decisions, including strategic decisions and they insist on and always follow that advice. This is called the strict fiduciary model of representation. Many lawyers are never completely comfortable with the fiduciary model. While this model relies heavily on the trust established between the parties, it is not consistent with the duty of the lawyer to communicate and make certain it is the client that makes the key decisions in the case.

Type 2 – The “Total Control” Client – these clients require constant contact on every issue – even the most minor issues – and require input and accord over every single decision no matter who has final authority over that decision. This kind of professional relationship will often end with the lawyer withdrawing from the case out of frustration or because of an inability to do their job. This kind of client is on the opposite side of the spectrum from the “total relinquishment of control” client.

Type 3 – The “Healthy Hybrid” Client – these clients understand the relative roles of the parties and view them as relatively equal. This type of client intelligently cooperates and closely works with his or her lawyer, but then allows the lawyer to do their job. This is sometimes referred to as the participatory model of representation.

Notwithstanding the different categories of (most) clients, every client is ultimately dependent on their lawyer’s expertise, knowledge, and capability to provide effective and diligent services to the client. The formulation of criminal case planning, no matter the client’s “trust quotient,” is dependent upon the ability of the lawyer to not only consult with but to explain the lawyer’s reasoning for any strategic decision – informing their clients in advance of putting tactical decisions into action, if possible.

Making Acceptable Decisions Involves a Willingness of the Lawyer to Communicate the Reasoning Behind the Moves

While it is true that a defendant should carefully listen to the advice of the attorney who is representing them, effective communication means making certain the client understands the reasoning behind that lawyer’s advice. A client/defendant may not immediately comprehend the reasoning behind a specific strategy, but by carefully explaining the thinking behind why a move advances their client’s interest – advancement along the trust quotient’s “trust line” can be achieved.

A Key Intersection of Trust in Criminal Cases – Accepting or Rejecting Plea Bargain Offers

A test of whether a lawyer-client relationship is working effectively is how that relationship functions during plea negotiations.

Accepting or rejecting a prosecution’s plea offer, by law, is a decision that is solely the defendant’s. The decision to accept or to reject a plea offer must always be made after careful, timely, and well-reasoned advice of the lawyer.

A lawyer is required to transmit any and all offers from the prosecution to the defendant whether the attorney believes the offer is a bad or a good offer and even if is clear to the lawyer that, based on the instructions of their client, that there is no chance of that offer being accepted by the client.

The defendant can also accept the offer even if the lawyer thinks the offer should be rejected and the case should proceed to the motions and trial stages.

Trust at this level cannot be understated. The duty of the attorney during negotiations is to carefully explain the possible consequences of all negotiations to include each and every offer and counteroffer. Any explanation of a plea offer must, of course, contain a discussion of the weighing of the plea bargain offer against the likelihood of success at trial as well as the possibility that through continued negotiations there may be a better offer before trial.

All of these issues turn on “clear-eyed” communication and a stark identification of those decisions that are made by the lawyer and those that are to be made by the client.

Achieving the “Objectives of the Engagement” – Unclear Guidelines

One of the primary sources of guidance for understanding the parameters of the attorney-client relationship is the American Bar Association’s Model Rules of Professional Conduct, (the Rules) –  specifically, Model Rule 1.2 and 1.4.

The Rules provide that a lawyer should consult with their client to establish the objectives of the engagement and communicate all significant developments in the case as they occur.

Disagreements can still arise even after the lawyer “clearly communicates” an issue and the reasoning underlying the lawyer’s advice. If the client refuses to agree to a tactical decision, for example, an agreement to continue (re-set) a trial to provide more time necessary to prepare the case, the lawyer enters a serious ethical quandary.

If the lawyer bends to the will of the client by going along with the client’s wishes, the lawyer violates his ethical duty to act in the client’s best interest. On the other hand, if the lawyer overrides the client’s will to further the “objectives of the engagement” (winning the trial) the lawyer may violate a different ethical duty.

Enter ABA Rule 1.2 – the Allocation of Lawyer-Client Power

The most useful source for resolving the kind of conflicts that can arise during a criminal case is found in the American Bar Association Standards for Criminal Justice (ABA Standards).

The ABA Standards are the most widely cited set of rules detailing the obligations of a criminal defense lawyer.

ABA Model Rule 1.2(a) (see below) establishes the foundational outlines of the relative authority of the parties in criminal cases. However, while Rule 1.2 advises an attorney that he or she should consult with the client to establish the objectives of the engagement, the Rule does not provide the means or the methods to achieve those objectives.

The only guidance provided revolves around this analysis:

1. The lawyer determines if the disputed decision involves an “objective or a means to an objective” of the engagement,

2. If the decision involves an objective of the engagement, the lawyer then determines who ultimately controls the decision.

If the decision involves a strategic or tactical decision and only the means to reach the objective is at issue, then the decision is squarely within the lawyer’s authority.

Here’s the rub: even the Rule (1.2) recognizes that “a clear distinction between objectives and means sometimes cannot be drawn.”

In other words, it isn’t always clear who should make the decision at issue: the lines are sometimes blurred.

Reading the Law

Primary sources of law do not “belong” to lawyers. I have always believed that the law and rules that govern an area belong to all of us. It is this author’s opinion that non-lawyers should always read the applicable law if possible to help them understand their lawyer’s interpretations of the law.

What follows are the three key provisions that govern this area of law- these provisions are written for everyone.

Rule 1.2: Scope of Representation & Allocation of Authority Between Client & Lawyer

Rule 1.2 states the following:

(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.

(b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.

(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

Rule 1.4 – Communication

Rule 1.4 states:

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these rules;

(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

For good measure:

Standard 4-1.3 Continuing Duties of Defense Counsel

Some duties of defense counsel run throughout the period of representation and even beyond. Defense counsel should consider the impact of these duties at all stages of a criminal representation and on all decisions and actions that arise in the course of performing the defense function.

These duties include:

(a) a duty of confidentiality regarding information relevant to the client’s representation which duty continues after the representation ends;

(b) a duty of loyalty toward the client;

(c) a duty of candor toward the court and others, tempered by the duties of confidentiality and loyalty;

(d) a duty to communicate and keep the client informed and advised of significant developments and potential options and outcomes;

(e) a duty to be well-informed regarding the legal options and developments that can affect a client’s interests during a criminal representation;

(f) a duty to continually evaluate the impact that each decision or action may have at later stages, including trial, sentencing, and post-conviction review;

(g) a duty to be open to possible negotiated dispositions of the matter, including the possible benefits and disadvantages of cooperating with the prosecution;

(h) a duty to consider the collateral consequences of decisions and actions, including but not limited to the collateral consequences of a conviction.

The Answer to the Question How to Obtain the Objectives of the Engagement – Effective Communication

While disputes will inevitably occur in criminal cases, the key to the successful resolution of conflict is clear lines of communication.

As discussed above, achieving the objectives of the lawyer-client “engagement,” especially when litigation strategy is the issue, balances a lawyer’s ethical duty to follow a client’s decisions concerning the objectives of engagement against the means by which these objectives are pursued.

If there is an impasse, the principle of mediation requires that each party re-examine their position to make certain that there actually is disagreement. In this environment, perception can be reality.

Mis-communication leads to misperception and misunderstanding. At that moment emotion then substitutes for reason and common sense. Falling back and re-examining each party’s position by carefully restating that position is the first step to clearing the way to understanding.

It is critical that a lawyer carefully ascertain whether or not the client fully appreciates both the risks involved in every key decision and the consequences that may follow from making the wrong decision. The form of communication chosen must make sense to the defendant
and must clarify, not obfuscate, the risks and benefits of every major decision the defendant faces.

A thoughtful and reasonable lawyer walks this walk by treating their clients with respect and presenting their position to the client in a manner that does not silence the client’s “voice.”

Summary and Conclusion – Lawyer-Client Decisions in Criminal Cases -Who Decides What? – A Guide

The “traditional view” of the lawyer-client relationship provides that the goals or the objectives of the representation are decided by the client while the lawyer selects the means to achieve the client’s objectives.

For this relationship to work, the lawyer, as a trusted and skilled professional, utilizes his or her training and specialized knowledge to manage the criminal case in accordance with that lawyer’s best judgment. This means the client must cede all tactical and strategic decisions to the lawyer.

Why should the client surrender this kind of decision to the lawyer? It is because the lawyer, as a detached expert, not emotionally distracted by the case, is in the better position to react to the inevitable obstacles that will arise with calm deliberation and careful reasoning.

On the other hand, while the lawyer’s role in the traditional approach to the lawyer-client relationship suggests deference to education and experience, the client is the master of the most important decisions that are made as the case proceeds through each stage.

In the key decision of Strickland vs Washington, which addresses this issue, the defense lawyer’s relationship to the client identifies defense counsel:

“[A]s assistant to the defendant,” who has certain basic duties including “the overarching duty to advocate the defendant’s cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments.”

The case makes clear, however, that in delineating a lawyer’s duties in describing the lawyer-client relationship, the lawyer is, in fact, in control of the litigation and has must have “wide latitude ….in making tactical decisions.”

Strickland states that “[s]trategic choices made after a thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.”

Strickland makes clear that defense lawyers are provided almost unlimited freedom of action in managing a case and further dictates that counsel’s strategic choices will be deemed professionally adequate as long as they can reasonably be considered sound trial strategy.

A clear delineation of the respective decision-making duties and responsibilities as between lawyers and clients is critical to the success not only of the relationship between the parties but in also achieving the best result possible in the individual case.

The lawyer must use common sense, professional judgment, and establish clear lines of communication to address the inevitable obstacles that arise over recommended strategies to achieve that result. By thoroughly discussing the lawyer’s tactics and strategy employed in pursuing “the objectives of the engagement” the lawyer-client relationship is strengthened.


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Never stop fighting – never stop believing in yourself and your right to due process of law.

BEST-STANDING-CHOICE-200x300ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at hmsteinberg@hotmail.com – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge of Colorado Criminal Law and his 35 plus years of experience in the courtrooms of Colorado may give him the edge you need to properly defend your case.