Criminal Defense: Client Representation Rights and Counsel's Duties

A criminal defense attorney is often confronted with the situation where a defendant wants to pursue a strategy or tactic which experienced counsel realizes is not a road to success. The American Bar Association’s Model Rule 1.2(a) states “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 (see Cal. Penal Code §1018), whether to waive jury trial and whether the client will testify.” (People v. Guzman (1988) 45 Cal.3d 915, 962). Other decisions reserved for defendants have been included, such as: whether to waive an appeal. See Jones v. Barnes (1983) 463 U.S. 745, 751, 753 n.6; ABA Standards for Criminal Justice § 4.52.

There is no equivalent to the ABA standard in the California Rules of Professional Conduct. But California cases have held the ABA’s model rules serve as a collateral source for guidance on proper professional conduct in California. People v. Donaldson (2001) 93 Cal. App. 4th 916, 928. According to the Model Rules, the client determines the objectives of representation and attorney must consult with the client regarding the means “by which they are to be pursued.” The ABA Standards for Criminal Justice states: “[a]lthough it is highly improper for counsel to demand that the defendant follow what counsel perceives as the desirable course or for counsel to coerce a client's decision through misrepresentation or undue influence, counsel is free to engage in fair persuasion and to urge the client to follow the proffered professional advice.” Commentary to section 4.52.

Of course, the attorney cannot counsel the client to engage in or assist a client in conduct the lawyer knows to be criminal and there is no attorney-client privilege if there is a prima facie showing. Cal. Evid. Code §956. But the defense attorney can “discuss the legal consequences of any proposed course of conduct with a client,” according to the ABA Standards on Criminal Justice.
If a client insists on taking the witness stand (one of the enumerated decisions left solely to the client) against the advice of counsel, the defense attorney faces some difficult ethical issues. Attorneys have a duty not to present false testimony or mislead the tribunal. In re Branch (1969) 70 Cal. 2d 200; People v. Pike (1962)58 Cal.2d 70, 97; see also, Cal. Buss. & Prof. Code §6068(d). There are special considerations, however, for a criminal defense attorney because of “the special protections historically provided criminal defendants,” according to the ABA Model Rules, Rule 3.3 Comment 9.

The Model Rules, although proscribing false testimony by all attorneys in Rule 3.3(a)(1), state “in some jurisdictions, however, courts have required counsel to present the accused as a witness or to give a narrative statement if the accused so desires, even if counsel knows that the testimony or statement will be false. The obligation of the advocate under the Rules of Professional Conduct is subordinate to such requirements.” California has accepted this approach or at least found that the defendant received effective assistance of counsel when it was utilized. Guzman, supra; People v. Gadson (1993) 19 Cal.App.4th 1700, 1710‑1711. Additionally, Comment 9 to Rule 3.3. states: “this Rule does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes but does not know that the testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client’s decision to testify.”

The National Association of Criminal Defense Lawyers (NACDL), in Ethics Advisory 92-2, requires the defense attorney to believe beyond a reasonable doubt, that the defendant’s planned testimony constitutes perjury. Ironically, this provides an opportunity for defense attorneys to actually employ for themselves the standard they are always asking juries to abide by. The NACDL advisory, also requires the lawyer to make a “strong, continuing, good faith effort to dissuade the client. . . .” Under the NACDL advisory, the lawyer “may not assist the client to improve upon the perjury, but must maintain the client’s confidences and secrets, examine the client in the ordinary way, and, to the extent tactically desirable, argue the client’s testimony to the jury as evidence in the case.” (Emphasis added.) This seems to run contrary to the ABA Model rules and accompanying commentary but, as usual, none of these rules are a model of clarity.

The criminal defense attorney has challenges in dealing with clients who do not appreciate the advice they are receiving. Time spent with the client is often a means to gain their trust such that your advice is heeded, but if not, these are guidelines counsel should follow.

- Michael Crowley

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**