Please read pages 188-207 (but skip problem 3-4).

RULE 1.2. Scope of Representation and Allocation of Authority Between Client and Lawyer

(a) Subject to the provisions herein, 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 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, the client gives informed consent and where necessary notice is provided to the tribunal and/or opposing counsel.

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent, except that the lawyer may discuss the legal consequences of any proposed course of conduct with a client.

(e) A lawyer may exercise professional judgment to waive or fail to assert a right or position of the client, or accede to reasonable requests of opposing counsel, when doing so does not prejudice the rights of the client.

(f) A lawyer may refuse to aid or participate in conduct that the lawyer believes to be unlawful, even though there is some support for an argument that the conduct is legal.

(g) A lawyer does not violate these Rules by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, and by treating

Comment: Allocation of Authority Between Client and Lawyer

[1] Paragraph (a) confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer’s professional obligations. The decisions specified in paragraph (a), such as whether to settle a civil matter, must also be made by the client. See Rule 1.4(a)(1) for the lawyer’s duty to communicate with the client about such decisions. The lawyer shall consult with the client with respect to the means by which the client’s objectives are to be pursued. See Rule 1.4(a)(2).

[2] Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters. On the other hand, lawyers usually defer to their clients regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. On occasion, however, a lawyer and a client may disagree about the means to be used to accomplish the client’s objectives. Because of the varied nature of the matters about which a lawyer and client might disagree, and because the actions in question may implicate the interests of a tribunal or other persons, this Rule does not prescribe how such disagreements are to be resolved. Other law, however, may be applicable and should be consulted by the lawyer. The lawyer should also consult with the client and seek a mutually acceptable resolution of the disagreement. If such efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw from the representation. See Rule 1.16(c)(4). Likewise, the client may resolve the disagreement by discharging the lawyer, in which case the lawyer must withdraw from the representation. See Rule 1.16(b)(3).

[3] At the outset of a representation, the client may authorize the lawyer to take specific action on the client’s behalf without further consultation. Absent a material change in circumstances and subject to Rule 1.4, a lawyer may rely on such an advance authorization. The client, however, may revoke such authority at any time.

[4] In a case in which the client appears to be suffering diminished capacity, the lawyer’s duty to abide by the client’s decisions is to be guided by reference to Rule 1.14.

RULE 1.14: CLIENT WITH DIMINISHED CAPACITY

(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a conventional relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

Comment

[1] The responsibilities of a lawyer may vary according to the intelligence, experience, mental condition or age of a client, the obligation of a public officer, or the nature of a particular proceeding. The conventional client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. Any condition that renders a client incapable of communicating or making a considered judgment on the client’s own behalf casts additional responsibilities upon the lawyer. When the client is a minor or suffers from a diminished mental capacity, maintaining the conventional client-lawyer relationship may not be possible in all respects. In particular, a severely incapacitated person may have no power to make legally binding decisions. Nevertheless, a client with diminished capacity often has the ability to understand, deliberate upon and reach conclusions about matters affecting the client’s own well-being.

[2] The fact that a client suffers a disability does not diminish the lawyer’s obligation to treat the client attentively and with respect.

[3] The client may wish to have family members or other persons participate in discussions with the lawyer. The lawyer should consider whether the presence of such persons will affect the attorney-client privilege. Nevertheless, the lawyer must keep the client’s interests foremost and, except for protective action authorized under paragraph (b), must look to the client, and not family members, to make decisions on the client’s behalf.

[4] If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client. In matters involving a minor, with or without a disability, the question whether the lawyer should look to the parents as natural guardians may depend on the type of proceeding or matter in which the lawyer is representing the minor. If the lawyer represents the guardian as distinct from the ward, and reasonably believes that the guardian is acting adversely to the ward’s interest, the lawyer may have an obligation to prevent or rectify the guardian’s misconduct. See Rule 1.2(d).

RULE 1.4: COMMUNICATION

(a) A lawyer shall:

(1) promptly inform the client of:

(i) any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(j), is required by these Rules;

(ii) any information required by court rule or other law to be communicated to a client; and

(iii) material developments in the matter including settlement or plea offers.

(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 a client’s 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 these Rules 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.

Comment

[1] Reasonable communication between the lawyer and the client is necessary for the client to participate effectively in the representation.

Communicating with Client

[2] In instances where these Rules require that a particular decision about the representation be made by the client, paragraph (a)(1) requires that the lawyer promptly consult with the client and secure the client’s consent prior to taking action, unless prior discussions with the client have resolved what action the client wants the lawyer to take. For example, paragraph (a)(1)(iii) requires that a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously made clear that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer. See Rule 1.2(a).

[3] Paragraph (a)(2) requires that the lawyer reasonably consult with the client about the means to be used to accomplish the client’s objectives. In some situations — depending on both the importance of the action under consideration and the feasibility of consulting with the client — this duty will require consultation prior to taking action. In other circumstances, such as during a trial when an immediate decision must be made, the exigency of the situation may require the lawyer to act without prior consultation. In such cases, the lawyer must nonetheless act reasonably to inform the client of actions the lawyer has taken on the client’s behalf. Likewise, for routine matters such as scheduling decisions not materially affecting the interests of the client, the lawyer need not consult in advance, but should keep the client reasonably informed thereafter.

Additionally, paragraph (a)(3) requires that the lawyer keep the client reasonably informed about the status of the matter, such as significant developments affecting the timing or the substance of the representation.

[4] A lawyer’s regular communication with clients will minimize the occasions on which a client will need to request information concerning the representation. When a client makes a reasonable request for information, however, paragraph (a)(4) requires prompt compliance with the request, or if a prompt response is not feasible, that the lawyer or a member of the lawyer’s staff acknowledge receipt of the request and advise the client when a response may be expected. A lawyer should promptly respond to or acknowledge client communications, or arrange for an appropriate person who works with the lawyer to do so.

Explaining Matters

[5] The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. Adequacy of communication depends in part on the kind of advice or assistance that is involved. For example, when there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others. On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interest and the client’s overall requirements as to the character of representation. In certain circumstances, such as when a lawyer asks a client to consent to a representation affected by a conflict of interest, the client must give informed consent, as defined in Rule 1.0(j).

[6] Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. However, fully informing the client according to this standard may be impracticable, for example, where the client is a child or suffers from diminished capacity. See Rule 1.14. When the client is an organization or group, it is often impossible or inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer should address communications to those who the lawyer reasonably believes to be appropriate persons within the organization. See Rule 1.13. Where many routine matters are involved, a system of limited or occasional reporting may be arranged with the client.

Withholding Information

[7] In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. A lawyer may not withhold information to serve the lawyer’s own interest or convenience or the interests or convenience of another person. Rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. Rule 3.4(c) directs compliance with such rules or orders.

Departing Lawyers

[7A] A lawyer has a duty to keep a client informed about “material developments” in a matter under paragraph (a)(1)(iii) of this Rule, and about the “status of the matter” under paragraph (a)(3). This duty applies when a lawyer who has primary or substantial responsibility for current clients or for performing material legal services on one or more particular active matters is leaving a law firm to join another law firm (a “departing lawyer”). Thus, after a departing lawyer has informed a responsible member or members of the current firm of a concrete decision to move to another firm, the departing lawyer must give prompt notice of that decision to any potentially affected clients of the current firm.

. . . .

. . .

(f) A lawyer shall not accept compensation for representing a client, or anything of value related to the lawyer’s representation of the client, from one other than the client unless:

(1) the client gives informed consent;

(2) there is no interference with the lawyer’s independent professional judgment or with the client-lawyer relationship; and

(3) the client’s confidential information is protected as required by Rule 1.6.

. . .

Comments 11 & 12

Person Paying for a Lawyer’s Services

[11] Lawyers are frequently asked to represent clients under circumstances in which a third person will compensate them, in whole or in part. The third person might be a relative or friend, an indemnitor (such as a liability insurance company) or a co-client (such as a corporation sued along with one or more of its employees). Third-party payers frequently have interests that may differ from those of the client. A lawyer is therefore prohibited from accepting or continuing such a representation unless the lawyer determines that there will be no interference with the lawyer’s professional judgment and there is informed consent from the client. See also Rule 5.4(c), prohibiting interference with a lawyer’s professional judgment by one who recommends, employs or pays the lawyer to render legal services for another.

[12] Sometimes it will be sufficient for the lawyer to obtain the client’s informed consent regarding the fact of the payment and the identity of the third-party payer. If, however, the fee arrangement creates a conflict of interest for the lawyer, then the lawyer must comply with Rule 1.7. The lawyer must also conform to the requirements of Rule 1.6 concerning confidentiality. Under Rule 1.7(a), a conflict of interest may exist if the lawyer will be involved in representing differing interests or if there is a significant risk that the lawyer’s professional judgment on behalf of the client will be adversely affected by the lawyer’s own interest in the fee arrangement or by the lawyer’s responsibilities to the third-party payer (for example, when the third-party payer is a co-client). Under Rule 1.7(b), the lawyer may accept or continue the representation with the informed consent of each affected client, unless the conflict is nonconsentable under that paragraph. Under Rule 1.7(b), the informed consent must be confirmed in writing. See Rules 1.0(e) (definition of “confirmed in writing”), 1.0(j) (definition of “informed consent”), and 1.0(x) (definition of “writing” or “written”).

Criminal defendants daily entrust their liberty to the skill of their lawyers. The consequences of the lawyer’s decisions fall squarely upon the defendant. There is nothing untoward in this circumstance. To the contrary, the lawyer as the defendant’s representative is at the core of our adversary process.¹  

Introduction: A Work in Progress

This Essay, though a published work, is more properly seen as a work in progress. It reflects my current thinking about a topic requiring constant rethinking: how to effectively counsel clients--especially young clients-- facing serious charges in juvenile and criminal court. This Essay is a work in progress because client counseling is itself a work in progress--an uncertain and ever-changing landscape, depending on the case, the client, the lawyer-client relationship, and some very real external constraints. Young people are also, by definition, works in progress.² The more I think *12 about how to effectively advise and guide young, often frightened clients, the less I seem to know.

I am particularly interested in counseling young people about the decision whether to plead guilty or go to trial in serious cases. But let me be clear, by counseling, I am not talking about grand theories about interviewing and counseling as they pertain to young people. Although this topic is important, it has been well covered by others.³ I am focused instead on how to convince a young person to take a favorable plea rather than go to trial when the chances of prevailing are low and the stakes are high. This is something that experienced defenders do everyday. Yet, very little has been written about how we do it.

Though I had initially hoped to put forward a single, overarching strategy for how to convince young clients to cut their losses in the face of certain disaster--a brilliant, original, groundbreaking technique that would work with even the most recalcitrant youth--sadly, I will not be offering anything like that here. The problem is, no matter how much I admire a particular strategy, the client invariably gets in the way. Theories are helpful, but somehow when they rub up against hard reality things go awry. It is not just the tough clients; even relatively submissive clients require lawyerly flexibility, adaptability, and nuance. In the end, there are too many vagaries--the kind of vagaries that are endemic in law practice--for me to offer a definitive formula for effective counseling in this context.

As practicing lawyers know, interviewing and counseling are at the heart of legal representation.⁴ This is what lawyers do, even trial lawyers: we talk with and advise clients. As criminal lawyers know, the decision whether to go to trial is “the most important single *13 decision” a client faces,⁵ and requires wise counsel. When the decision is a close call--there is no great cost to going to trial, no clear benefit to accepting a plea, and no serious downside either way--it is easy to accede to a client’s wishes. But when there is no question that going to trial will be ruinous, and the client does not understand this, it is incumbent upon the lawyer to get through to the client. This is especially true when the client is developmentally immature and emotionally traumatized.⁶ Although I have been practicing criminal law for more than twenty-five years, I am still thinking about how to do this.

About Benny

Let me tell you about a recent case involving a young man I will call Benny.⁷ When I first met him, Benny had just turned nineteen *14 and lived with his grandmother. His mother died of cancer when he was ten and his father was never in the picture. Although Benny grew up in a poor, crime-ridden neighborhood in Washington, D.C., he had managed to stay out of trouble. He had no juvenile record, and never spent time in a juvenile institution. He was arrested once when he was fifteen for being a passenger in a stolen car, but no charges were filed.

Although Benny had been a decent student, he quit high school midway through the eleventh grade. Having time on his hands proved not to be a good thing. He started hanging out with a different crowd, a wilder crowd. Soon after turning eighteen, he was arrested a number of times: (1) for possessing marijuana (he was smoking a “blunt” on a park bench); (2) shoplifting (he stole a candy bar and a bottle of after-shave); and (3) assaulting a police officer (he pushed past a plain-clothes police officer who tried to stop him at the Metro). These weren’t serious offenses, but for the first time in his life Benny found himself under court supervision.

Then things took a turn for the worse. Two days after turning nineteen, Benny was arrested and charged with armed carjacking and related charges,⁸ and was held in jail. The allegation was that, together with another teenager, Benny had approached a forty-year-old man who had gotten into a shiny new Lexus GX 470 sport utility vehicle (SUV), and threatened to kill the man if he didn’t get out of the car and give up his keys. It was broad daylight. Neither of the young men attempted to hide their faces. One of the teenagers held what appeared to be a gun. The SUV owner complied, but also got a good enough look to be able to describe the young men in detail to the 911 operator--which is what he did as soon as the two fled in his car. It took the police less than ten minutes to spot the Lexus, pursue and apprehend the occupants, and obtain a positive identification from the car’s owner. Upon searching the vehicle, the police found a “starter pistol” (a gun that looks like a real pistol but is incapable of firing real bullets) under the driver’s seat. If this were not enough, both young men later gave incriminating statements at the police station.

The evidence was overwhelming. Nonetheless, Benny disputed the charges, offering several different accounts: (1) he had just barely *15 gotten into his buddy’s car when the police stopped him and he knew nothing about any carjacking; (2) the complaining witness (who turned out to be a doctor who had served in the Peace Corps, and who now, in addition to having a successful private practice, volunteered one day a week at an inner-city health clinic) was a crack cocaine addict who voluntarily gave his friend the car because of a drug debt; and (3) it wasn’t even a real gun. Although identification cases are always troubling, and all good defenders investigate before ruling out even outlandish defenses, nothing the client offered had the makings of a viable defense. His first two “tries” were belied by the evidence, and the third was not a defense. I had gone with an investigator to interview the complaining witness and nothing about him said “crackhead.” Nothing suggested that he was either lying or mistaken.

The prosecutor offered a preindictment plea: if Benny pled guilty to a lesser charge--assault with intent to rob--all the other charges would be dismissed. Under the sentencing guidelines in effect at that time, if Benny took this plea he was looking at eighteen to sixty months.⁹ In view of his age, relative lack of record, and his “assumption of responsibility,” he had a good chance of getting a “split sentence” of prison time and probation, with the prison time in the low range of the spread.¹⁰ If Benny went to trial and was convicted of armed carjacking, he was facing a possible thirty years, with a fifteen-year mandatory minimum,¹¹ and would be lucky to get no more than the mandatory minimum.¹² If he went to trial and was convicted of unarmed carjacking, he was facing a possible twenty-one years, with a seven-year mandatory minimum,¹³ and would be lucky to get no more than the mandatory seven years.¹⁴ The plea would be held open for a few of weeks, but not much longer.

*16 Because I believe that lawyers should give advice,¹⁵ sometimes forcefully,¹⁶ I proceeded to do so. I offered this advice in what I have come to regard as an increasingly “mothering style.”¹⁷ I told Benny *17 that if he were my son or my brother, I would advise him to take the plea. I said it wasn’t even close. I explained why in plain terms. I talked about the strength of the prosecution’s case and the lack of any real defense. I described how the case would look if we went to trial, witness by witness. I told him that, in my judgment, no judge or jury would ever acquit him because the complainant would come across as truthful, he was found in the stolen car less than ten minutes after the crime looking exactly as the complainant had described him, he had fled the police, he was found with a gun matching the one used in the crime, and he gave an incriminating statement to the police. I explained the huge difference between the sentence Benny would get if convicted at trial and the sentence he would get if he pled guilty. I said that most judges would find this case upsetting. I talked about how sometimes the “fight” is at sentencing, not at trial, and we had strong arguments for lenience.

I did my best to engage Benny. I asked questions. I urged him to ask me questions. I shared the police and investigative reports with him. I used “silence,” sitting quietly with Benny while everything sunk in. Benny seemed to listen hard during all this. He seemed to be considering what I had said.

When I asked him what he was thinking, Benny paused and looked down as if deep in thought. I felt certain he was about to accept the plea. Then he looked up and said, “I ain’t takin’ no plea.”

This was not the first time I had failed to persuade a client. Sometimes I feel like the Rodney Dangerfield of criminal and juvenile defenders: while many lawyers worry about overly submissive clients who readily defer to their adult authority--especially young clients¹⁸--mine seem to have no trouble challenging me.

Understanding that it sometimes “takes a village” to counsel a client, I turned to a clinic colleague. An experienced lawyer on leave from the local public defender office, my colleague was a few years younger than I am, male, and had the southern “gift of gab.” We went to the jail to meet Benny.

My colleague covered much the same ground that I had, but with a slightly different spin. He emphasized that this was Benny’s choice, all the while urging the plea. He paid homage to Benny’s values, in keeping with the client-centered model of counseling.¹⁹ He said, “Look, I don’t know you. You might be the kind of person who looks back after getting a fifteen-year sentence instead of a mere year and *18 a half and says, ‘I’m glad I went to trial, it was worth it.’ Only you can know this.”

Benny listened hard. He seemed to be considering what my colleague had said. When asked what he was thinking, Benny paused and looked down as if deep in thought. I felt certain that he would accept the plea. Then he looked up and said, “I ain’t takin’ no plea.”

Two smart and appealing postgraduate fellows also worked on Benny’s case.²⁰ Separately and together, they spent hours with Benny, urging him to accept the plea offer. They did so until the first preindictment plea offer was replaced with a slightly less generous offer. Throughout the life of the case, they did everything they could to win Benny’s trust and confidence. They visited him regularly, even when there was nothing new to talk about. They wrote him letters. They talked to him on the phone. Every time they thought they had gotten through, Benny would pause, look up and say, “I ain’t takin’ no plea.”

Benny’s resistance is not unique. No accused person, young or old, jumps at a plea that carries prison time. It doesn’t matter how hardened the accused; nobody likes the prospect of incarceration.²¹ From Benny’s perspective, we were urging a teenager, to accept a deal that would send him away for at least a couple of years to an adult prison. Benny’s youth made it especially difficult for him to think things through. At nineteen, being locked up for two years was being locked up forever. Two years was a lifetime to Benny. Two years, seven years, fifteen years--it was all the same to Benny. And we couldn’t seem to convince him otherwise.

What We Know About the Ability of Young People to Make Difficult, Life-Changing Decisions

Young people like Benny are less able than older people to recognize, understand, and carefully weigh consequences when making important life decisions. This is something about which law and science are in synch. The Supreme Court has noted young people’s lesser capacity for decision making in a variety of contexts: *19 when they are in need of mental health treatment;²² when they seek an abortion;²³ when they want to take up cigarette smoking;²⁴ and when they are prosecuted for capital murder.²⁵

In Roper v. Simmons,²⁶ the case that abolished the death penalty for offenders under eighteen, the Court relied heavily on studies about the decision-making capacity of adolescents. In recounting the facts of the case, the Court noted evidence that the seventeen-year-old Simmons was “‘very immature,’ ‘very impulsive,’ and ‘very susceptible to being manipulated or influenced.”’²⁷ In finding that the juvenile death penalty violated the Eighth Amendment, the Court pointed to three things that distinguish juveniles from adults: (1) their lack of maturity and less developed sense of responsibility; (2) their greater susceptibility to peer pressure; and (3) their unformed character.²⁸

Scientific research--both social science and “hard science”--confirms that young people are less capable of careful deliberation than adults.

Developmental psychologists who have evaluated adolescents’ cognitive capacities (ability to reason and understand), emotional development (ability to manage emotions and control impulses when emotional arousal is high), and psychosocial development (risk  *20 perception, future orientation, and response to adult and peer influence) find that they lag behind adults in ways that significantly affect their ability to make good decisions.²⁹ For example, adolescents are generally less capable of assessing risks (they tend to overestimate rewards and underestimate risks), more vulnerable to peer pressure (it is harder for adolescents to exercise independent judgment in the face of peer pressure than adults), less capable of considering and weighing long-term consequences (they have a distorted sense of time and are much more focused on immediate desires and short-term consequences), and less able to resist impulse and control their moods and emotions (they are more impulsive and emotionally labile) than adults.³⁰

In short, adolescents not only “make bad decisions,” they “make decisions badly.”³¹

Neurological research on the frontal lobe--the part of the brain that manages impulse control, long-term planning, priority setting, calibration of risk and reward, and insight--supports the psychological research.³² Neurological research has demonstrated that the frontal lobe is still growing and changing during adolescence and beyond,³³ the connection between the prefrontal cortex (the subsection of the frontal lobe that controls executive function, including judgment) and the limbic system (primarily responsible for emotion and memory) is still developing during adolescence and *21 beyond,³⁴ and myelination--the process by which neurons (the brain’s circuitry) are insulated by white matter (fatty tissue)--continues throughout adolescence and into adulthood.³⁵ In short, during adolescence and beyond, the part of the brain that relates most to careful decision making is not done being built yet.³⁶

All of this--the cognitive, emotional, psychosocial, and neurological limitations of youth--has a direct impact on a young person’s ability to make a reasoned decision about whether to take a plea or go to trial. This is what makes it difficult for a young person to understand and accept that while it may be unpleasant in the short term to take a plea that puts him in prison, it will be far worse later on if he doesn’t.

It was hard to know what exactly was going on with Benny. Consistent with what we know from developmental psychology, Benny seemed to overestimate rewards (“I ain’t takin’ no plea cause we’re gonna beat this case and then I’m goin’ home.”) and underestimate risks (“Nobody will believe that crackhead complainant.”). Although we didn’t know whom exactly he was talking to about his case, he seemed to be influenced by his peers in the jail (“Everyone here is sayin’ I should fight the case, not take no plea.”). He seemed utterly incapable of considering and weighing the long-term consequences of rejecting the plea offer because he could not fathom being in prison for any period of time. (“Two years? I might as well be locked up for seven. Ain’t no difference.”).

He wasn’t terribly emotional; if anything, he was reticent. But he did seem to enjoy being able to say no after graciously allowing us our various counseling spiels.

Perhaps it was biology; barely nineteen, his brain was probably still growing, especially the prefrontal cortex, and myelination was likely still in process. Perhaps he said no because his brain wouldn’t allow him to contemplate what yes might mean.

*22 Maybe it was an existential assertion of self: I can say no, therefore I am.³⁷

Maybe it was just adolescent contrarianism.³⁸

In some ways, Benny’s situation was especially hard because, in addition to facing serious charges and serious time, he had little or no family support, no community support (he hadn’t been in school in two years, had never held a regular job, was not involved in a church), and had suffered significant loss for one so young (his mother’s death, abandonment by his father). He felt alone in the world. His grandmother, whom he loved dearly, was unwell and increasingly frail. Although we urged Benny to talk to her, he didn’t want to burden her.

Yet Benny had it better than many young people facing time. He functioned fairly well intellectually. He had never been physically or sexually abused. Though he had suffered real loss, he had a devoted grandmother. And he wasn’t facing as much time as some. In my experience, the most difficult cases involve young adolescents--kids who are thirteen, fourteen, fifteen--who have been terribly victimized themselves and commit brutal crime in response.³⁹ When they are faced with the prospect of challenging their transfer to adult criminal court, where they will surely be convicted and possibly get a life sentence, or agreeing to a transfer to adult court in exchange for a decades-long prison sentence, they cannot begin to fathom this “choice.” In my experience, any plea that involves substantial adult prison time will cause a young client to balk. It is the rare youth who can get beyond the initial shock and dismay. Often the youth’s family is no better.⁴⁰ 

Strategies

This paper was motivated by my fear that young people like Benny will end up doing much more time for the same crimes than their older counterparts because they are incapable of making a good decision.⁴¹ I worry that the cognitive, emotional, psychosocial, and neurological limitations of youths like Benny pose very real challenges--and their lawyers don’t do enough to help. Although I believe strongly that these limitations raise competency issues--in particular, “decisional competency”⁴²--I have not had much luck persuading judges of this.⁴³

So, lawyers must develop strategies for persuading young clients to limit their exposure and make the best of a bad situation. Let me say again that I am not talking about cases about which reasonable lawyers and clients might differ. In those close cases, the lawyer must make certain that the client is making a fully informed decision and is aware of the risks, consistent with prevailing models of client counseling.⁴⁴ I am talking instead about clients headed straight for *24 disaster because of poor decision-making skills, who are about to make a bad decision that will affect their lives for years to come.⁴⁵ When gentle client-centered counseling fails to avert the danger, I believe devoted lawyers should consider the following counseling techniques: pestering and “hocking,”⁴⁶ bullying and manipulation, and facilitating the five stages of grief.

Pestering and Hocking

As with Benny, I believe in persistence in client counseling. In order to effectively counsel a client who is about to do something he or she will soon regret (and ultimately blame you for, because you let them do it), you have to be willing to pester and hock and hound. You have to spend time. You have to be willing to do a lot of talking, bring others in to talk, find different ways of saying the same thing, and be willing to repeat yourself. You can’t give up. Although there might *25 come a time when the pestering and hocking becomes excessive and threatens to damage the lawyer-client relationship, this is usually a long way down the road. So long as you make plain that it is the client’s decision, and you will represent the client zealously at trial if the plea is refused,⁴⁷ there is no need to fear for the relationship. Good lawyers know how to avoid the breaking point.⁴⁸

The problem with pestering and hocking is not that the lawyer will go too far, but that he or she will not go far enough because of lack of time, impatience, or a sense of resignation that continued counseling will make no difference. As others have pointed out, excessive caseloads and the shortage of time undercut the ability of otherwise devoted defenders to effectively counsel and advocate for young clients.⁴⁹ Still, some cases demand more time, and caring lawyers usually find a way to make that happen. Cynical and burned-out lawyers do not.⁵⁰

Bullying and Manipulation

As we did with Benny, I believe in sending in the troops, in whatever form will work for that client--an older and more experienced lawyer, a younger and hipper lawyer, an African American or Latino lawyer, a male lawyer with machismo. I believe in double- and triple-teaming clients, sending in a few at a time, and recruiting a client’s friends and family to lean on the client and help him or her make the right decision. Although I am mindful that the *26 developmental status of young people “renders them both in greater need of guidance, and at the same time, more vulnerable to overreaching,”⁵¹ I am willing to err on the side of overreaching when necessary.

By bullying, I mean applying pressure. Forceful language is sometimes necessary, even “verbal abuse.”⁵² Badgering, cajoling, needling, riling, inciting--all are methods that might help a client to finally see the light.⁵³ Some counseling sessions are emotionally grueling, leaving both lawyer and client drained. These sessions are far more taxing than actually trying the case--a fact I often share with the client. “It’s much more fun for me to try the case,” I tell these clients. “And I am ready to try the case. But it’s not good for you. That’s why I’m killing myself here, talking till I’m blue in the face, trying to get you to do the wise thing.” I seldom worry about exerting too much pressure. I worry instead about failing to exert enough.⁵⁴

By manipulation, I mean a range of techniques that might work to get under the client’s skin, get him to lower his defenses, and ultimately get him to change his mind.⁵⁵ I do not mean coercing *27 clients by threatening to withdraw if the client does not go along with the lawyer, or suggesting that the lawyer will be less than zealous at trial.⁵⁶ I also do not mean lying to clients.⁵⁷

But I have no objection to working on the emotions of clients--including playing on their vulnerabilities and fears--in order to get them to make a sane decision. For example, using Benny’s ailing grandmother--“Don’t you want to get out of prison while she is still alive? Don’t you want to be there for her when she needs you most?”--was something we did repeatedly. We also pointed out men at the jail who were in their late twenties and thirties--they looked much older than Benny, because there is no harder time than jail time--to show Benny what he would look like after serving a posttrial sentence.⁵⁸ Though we meant to enlighten him, I cannot deny that we also meant to scare him.⁵⁹

*28 Strangely enough, I think defenders could learn a thing or two from police interrogators who successfully manipulate our young clients in myriad ways, for good and ill.⁶⁰ If they can do it in the interests of law enforcement, why can’t we do it in the interests of helping our clients to avoid excessive criminal punishment?

I am only being slightly facetious. Although I would not want to emulate or endorse police trickery and deception, it would not hurt if defenders became more psychologically sophisticated about how to influence and persuade clients.⁶¹ The police have become very good at it. We could be better.

The Five Stages of Grief

When I first set out to write this Essay I thought this might be the one truly original contribution I would make. I was wrong. In researching Elisabeth Kübler-Ross’s groundbreaking theory about death and grief,⁶² I came upon a Wikipedia description and there it was, big as life, apparently so much a part of popular culture that it appeared on Wikipedia, the online “peoples’ encyclopedia,”⁶³ as an illustration of the broader uses of Kübler-Ross’s theory:

For example, experienced criminal defense attorneys are aware that defendants who are facing stiff sentences, yet have no defenses or mitigating factors to lessen their sentences, often *29 experience the stages. Accordingly, they must get to the acceptance stage before they are prepared to plead guilty.⁶⁴

What had I been thinking? Apparently, anyone who knows anything about criminal defense knows that the five stages of grief is an essential part of the guilty plea process, that you have to help clients grieve before they see the writing on the wall and take a favorable plea.⁶⁵

But in case not everyone knows about this, let me offer a few thoughts on how the stages of grief might apply in counseling young people.

The stages of grief are as follows:

(1) Denial. During this stage the client, perhaps in a state of shock and disbelief over the charges, says things like “This can’t be happening, I don’t know nothin’ ‘bout this crime, I didn’t do it, and I ain’t takin’ no plea.”

(2) Anger. The client, who might be angry at him or herself, the system, or life in general, says things like “They’re lying, They’re out to get me, I don’t want to talk to you, and I ain’t takin’ no plea.”

(3) Bargaining. The client, starting to see that the case is not going away but still wanting to have some control, says things like “I’ll plead to unauthorized use of a vehicle but not no carjacking, I’ll plead to probation, I’ll plead for juvenile time, and I ain’t takin’ that plea.”

(4) Sorrow. The client, finally recognizing that he or she is in serious trouble and will have to do serious time, and truly feeling it for the first time, says things like “I’m sorry for what I did, I don’t know why I did it, It doesn’t feel like the real me, I’m sad to be in jail and I’m scared about going to prison, and I cry a lot at night because it feels like there’s no hope for me.”

(5) Acceptance. The client accepts the reality of the situation and says things like “I can’t change what happened then or the choices I have now, I want to get the shortest prison sentence possible, Maybe this plea is the only way to cut my losses, and I guess I should take the plea.”

*30 The idea of grief and its stages seems especially apt for traumatized young people, some of whom have dealt daily with violence and loss and who have never really grieved.⁶⁶ Now, they have also committed a life-altering crime, and it seems a lifetime of grief is backed up in them. All of this feels daunting to the average criminal or juvenile lawyer who is not an expert in mental health counseling. We might feel okay about moving our clients through denial, anger, and bargaining, but sorrow? How can we get them through sorrow? And what if there is no end to the sorrow?

I think we have to try no matter how difficult the challenge. We should also consult with and bring along mental health professionals whenever possible.

But the problem once again will be lack of sufficient time. Getting through the various stages of grief cannot happen in a single counseling session, whether one is young or old. Yet, plea offers usually come with short deadlines--far too short for most young defendants to meaningfully consider them.

The first thing then, is to negotiate with the prosecutor for as much time as possible to consider any plea. When the prosecutor resists, educate him or her with the social science and neurobiology research. If possible, try to get the judge’s help in lengthening the time a plea offer is on the table for pragmatic reasons--most judges want to resolve cases short of trial--if not on due process grounds.

The second thing is to be patient. Understand that the process will likely take time and the client will likely be resistant--“angry” or “in denial.”

Third, stop talking. Sometimes silence is the best way to get another person to start talking. Sit quietly with the client and create the space for sorrow. If you must speak, say very little. Say to the client, “I’m sad about this.” And then be quiet.⁶⁷

Conclusion

Maybe I am the worst, most paternalistic lawyer ever.⁶⁸ Maybe I have no regard for my client’s individual autonomy and am a proponent of lawyer-centered rather than client-centered *31 counseling.⁶⁹ Maybe I am importing some of the most obnoxious, heavy-handed counseling practices in adult criminal defense to the representation of easily influenced children and adolescents.⁷⁰ But is a young person’s ill-considered but autonomous decision making more important than his or her freedom? Is it always wrong to be heavy-handed?

I often say to my clients, “I work for you.” I consider myself a client-centered advocate,⁷¹ and do my best to model this approach to students and fellows. I tell my clients it is my job to pursue their interests and no one else’s. I am always clear with clients that the decision whether to plead or go to trial is theirs, not mine. But none of this answers the fundamental question here: What should a devoted, client-centered lawyer do to save a young client in trouble from a foolish decision?

In a case where it is clear that a young client is going to serve much more time for no good reason--when refusing a favorable plea offer is ill-considered and irrational--I believe that lawyers should do almost anything to change that client’s mind.

Benny ended up taking the plea, largely due to a rare combination of luck and time. For unknown reasons, the government took a long time to get an indictment and reoffered the initial plea, which they then left open for nearly a year. In the meantime, Benny was locked up, giving him a taste of incarceration and allowing him to sit with his options. The additional time also allowed Benny to grow up. He became more mature in his thinking. He became better at considering risks and weighing consequences. His brain probably grew and developed. Not to mention that the postgraduate fellows working on Benny’s case did an exemplary job of pestering and hocking over the many weeks and months.

I am glad for Benny and proud of the lawyering in the case.

INTRODUCTION

In one influential view, the lawyer’s most basic function is to enhance the autonomy of the client. The lawyer does this by providing the information that maximizes the client’s understanding of his situation and minimizes the influence of the lawyer’s personal views.

This autonomy or “informed consent” view is often contrasted with a paternalist or “best interest” view most strongly associated with official decisions about children and the mentally disabled. Here the professional’s role is to make decisions for the client based on the professional’s view of the client’s interests.¹

I am going to argue against the autonomy view that any plausible conception of good practice will often require lawyers to make judgments about clients’ best interests and to influence clients to adopt those judgments. The argument, however, does not amount to an embrace of paternalism. The issue of paternalism remains moot until we can clearly distinguish a judgment that a client choice is autonomous from a judgment that a choice is in the client’s best interests, and my argument is that in practice we often cannot make such distinctions. The argument takes the form of an illustration from my own experience followed by an analysis of it.

*214 I.

The only criminal case I ever handled involved defending a woman who worked as a housekeeper for the senior partner in the firm where I worked. The client, Mrs. Jones, was charged with leaving the scene of a minor traffic accident without stopping to identify herself.

According to her, she had stopped to identify herself; it was the other driver-the complainant-who had both caused the accident by hitting her car in the rear and who had left the scene without stopping. The other driver then called the police and reported Mrs. Jones as leaving the scene.

Mrs. Jones was black; the other driver was white. The police, without investigation, had taken the other driver’s word for what had happened, and when Mrs. Jones came down to the station at their insistence, they reprimanded her like a child, addressing her-a sixty-five-year old woman-by her first name while referring to the much-younger complainant as “Mrs. Strelski.”

Mrs. Jones lived near Boston in a lower middle class black neighborhood with a history going back to the Civil War. She was a homeowner, a church-goer, and a well known and respected member of the community. This was her first brush with the police in her sixty-five years. Nervous and upset as her experience had made her, she was obviously a charming person. As far as I was concerned, her credibility was off the charts.

Moreover, I had a photograph of her car showing a dent and a paint chip of the color of the other driver’s car in the rear-just where she said the other driver had struck her. When we got to the courthouse, we located the other car in the parking lot, found the dent and a paint chip of the color of my client’s car in the front, and I took a Polaroid picture of that.

The case seemed strong, and the misdemeanor procedure gave us two bites at the apple. First, there would be a bench trial. If we lost that, we were entitled to claim a trial de novo before a jury.

Thus, things looked fairly good. Mrs. Jones’s main problem was that her lawyer-me-was incompetent. I had never tried a case and had never done any criminal work. But I tried to remedy that by getting a friend with a lot of experience in traffic cases to co-counsel with me. The first thing my friend did was to dismiss, with a roll of his eyes, my plan to expose the police’s racism through devastating cross-examination. The judge and the police were repeat players in this process who shared many common interests, he told me. We could never get a dismissal on a challenge to prosecutorial discretion, *215 and if an acquittal would imply a finding of racism against the police, it would be all that harder for the judge to give one. The second thing my friend did was to start negotiation with the prosecutor, which he told me was the way nearly all such cases were resolved. He told the prosecutor some of the strengths of our case and showed him my photographs, but he didn’t say a word about racism.

The prosecutor made the following offer. We would enter a plea of, in effect, nolo contendere. Under the applicable procedure, this, if accepted by the judge, would guarantee a disposition of, in effect, six months probation. Mrs. Jones would have a criminal record, but because it would be a first offense, she could apply to have it sealed after a year.

We considered the advantages: It would spare her the anxiety of a trial and of having to testify. In the unlikely but possible event that we lost this trial, the plea bargain would have spared her six further months of anxious waiting, and the anxiety of a second trial. In the even more unlikely but still possible event that we lost both trials, it would have spared her certain loss of her driver’s license, a probably modest fine, and a highly unlikely but theoretically possible jail term of up to six months.

What was the downside? I couldn’t say for sure that the criminal record Mrs. Jones would have for at least a year wouldn’t adversely affect her in some concrete way, but I doubted it. (She was living primarily on Social Security and worked only part-time as a housekeeper.) What bothered me was that the plea bargain would deprive her of any sense of vindication. Mrs. Jones struck me as a person who prized her dignity, deeply resented her recent abuse, and would attach importance to vindication.

Mrs. Jones had brought her minister to the courthouse to support her and serve as a character witness. Leaving my friend with the prosecutor, I went over to her and the minister to discuss the plea bargain. I spoke to them for about ten minutes. For about half this time, we argued about whether I would tell her what I thought she should do. She and her minister wanted me to. “You’re the expert. That’s what we come to lawyers for,” they said. I insisted that, because the decision was hers, I couldn’t tell her what to do. I then spelled out the pros and cons, much as I’ve mentioned them here. However, I mentioned the cons last, and the last thing I said was, “If you took their offer, there probably wouldn’t be any bad practical consequences, but it wouldn’t be total justice.” Up to that point, Mrs. Jones and her minister seemed anxiously ambivalent, *216 but that last phrase seemed to have a dramatic effect on them. In unison, they said, “We want justice.”

I went back to my friend and said, “No deal. She wants justice.” My friend in disbelief and then said, “What? Let me talk to her.” He then proceeded to give her his advice. He didn’t tell her what he thought she should do, and he went over the same considerations I did. The main differences in his presentation were that he discussed the disadvantages of trial last, while I had gone over them first; he described the remote possibility of jail in slightly more detail than I had, and he didn’t conclude by saying, “It wouldn’t be total justice.” At the end of his presentation, Mrs. Jones and her minister decided to accept the plea bargain, and as I said nothing further, that’s what they did.

II.

My guess is that most people will have some doubts about whether Mrs. Jones’s ultimate decision was autonomous. Before we explore these doubts, however, we should consider a prior set of circumstances that seems to represent a paradox for the autonomy view.

Mrs. Jones did not want to be autonomous in the way that the autonomy view contemplates. She asked me to make the decision for her. She would have been immensely relieved if I had told her without explanation what she should have done, and she would have done it.

Now most people recognize that a commitment to individual autonomy requires the condemnation of some specific individual choices that, however seemingly autonomous in themselves, would preclude capacity for further autonomous choice. Choosing to sell yourself into slavery is the classic example. So long as these choices seem crazy or highly unusual, the contradiction they pose for the commitment to autonomy is not that serious.

However, I don’t think Mrs. Jones’s desire for an “escape from freedom” was crazy or highly unusual. Decisionmaking of this kind involves anxiety. Moreover, some people may reasonably believe that they are not very good at it. In such circumstances, the opportunity to put your fate in the hands of an apparently benevolent expert may seem attractive.

I’ve had experiences of this kind. For example, I recall our pediatrician advising my wife and me as to whether we should have our then two-month-old son vaccinated against whooping cough, several cases of which had occurred in our area. There was a specified *217 small probability of an adverse reaction to the vaccine, and given an adverse reaction, a specified small probability of death, and specified small probabilities of less extreme bad outcomes. Without the shot, there was a specified small probability of contracting the disease, a specified small probability given contraction of death, and specified small probabilities of various bad results short of death. I found this explanation, which went on for several minutes, overwhelmingly oppressive, and I felt a sense of deliverance when she concluded by saying, “In the case of my own child, I decided to give him the shot.” I felt, and still do, that that sentence was all that I needed or wanted to know.

Such attitudes pose a dilemma for the autonomy view. In the legal context, the lawyer must either acquiesce in the client’s choice to put her fate in the lawyer’s hands or “force her to be free” by denying her the advice that she considers most valuable. Neither seems consistent with the mainstream idea of autonomy.

In Mrs. Jones’s case, I think I was right not to permit her to delegate the decision to me at the outset. I correctly doubted my legal competence in the relevant area, and I didn’t know Mrs. Jones very well. (In both respects, my relation to our pediatrician at the time of the vaccination decision was different.) Thus, it was a good idea both to try to involve her in the decision and to learn more about her. But I don’t see this conclusion as distinctively supported by respect for Mrs. Jones’s autonomy. It was contrary to her expressed wishes, and it did not and probably could not have made it possible for her to make a genuinely autonomous subsequent decision. My decision to withhold my views could be supported as well by saying that it was not in Mrs. Jones’s best interests for her to delegate the decision to someone as ignorant about both the law and her as I was then.

III.

The decision Mrs. Jones ultimately made, as I described it before, illustrates a point that is now widely acknowledged. Even where they think of themselves as merely providing information for clients to integrate into their own decisions, lawyers influence clients by myriad judgments, conscious or not, about what information to present, how to order it, what to emphasize, and what style and phrasing to adopt.² As you probably surmised from the way I told the story, I think Mrs. Jones’s initial decision not to accept the plea *218 bargain was influenced by the facts that I went over the disadvantages of the plea bargain last, that I concluded by saying, “It wouldn’t be total justice,” and that my tone and facial expressions implied that justice should have been a decisive consideration for her. I think her ultimate decision was influenced by the facts that my friend discussed the advantages of the plea bargain last, went over the jail possibility at more length, omitted any reference to justice, and implied by his manner that he thought she should accept the bargain.

Proponents of the autonomy view are likely to respond that the problem illustrated by Mrs. Jones’s case is not the implausibility of the autonomy ideal, but the failure to competently implement it on the part of her lawyers. They would suggest that the discussion was too hurried and pressured and the advice was less informative and neutral than it should have been. Although such criticisms have substance, they tend to underestimate some intractable problems. Time is scarce in nearly all practice situations, and the difficulties of framing unbiased advice are often overwhelming.

As an illustration of these problems, consider two specific issues in counseling Mrs. Jones. My friend and I made clear to her that there was a theoretical possibility of a jail term if she were convicted, even though we both thought this probability tiny, and this knowledge visibly evoked anxiety and fear in Mrs. Jones. At the same time, we never discussed with her the possibility that we might defend on the ground that the prosecution was racially discriminatory.

Most practicing lawyers would probably approve our conduct. Such judgments are based on assumptions that lawyers necessarily rely on all the time about what a client’s goals are likely to be. Most lawyers would assume that even a small probability of jail would be important to most clients, and that in a case with strong conventional defenses, a defense with little probability of success and a strong potential for alienating the judge would be of little importance to most clients. The compatibility of such assumptions with the autonomy view depends on the extent to which the assumptions accurately reflect client ends. My own impression is that they are often inaccurate or too crude to serve as reliable guides. For example, in Mrs. Jones’s case I think conventional assumptions about the jail penalty and the discrimination defense are wrong.

Going to jail would have been a disastrous outcome for Mrs. Jones. However, it was also a very unlikely outcome. As a purely cognitive matter, most people have difficulty rationally (that is, consistently) making decisions about risks. Where the decision involves *219 an outcome that evokes strong emotions and vivid images, the difficulty is compounded.³ And, of course, where the circumstances in which the decision must be made involve strain and discomfort, the difficulty is further compounded. Such factors account in part for my feeling that it was not helpful to me in deciding about my son’s whooping cough vaccination to hear about the probability that he might die from it or from not having it.

I once met a client who had received a notice from the welfare department accusing her-more or less accurately-of some small-time fraud. She sobbed and fidgeted uncontrollably and couldn’t focus on my questions or tell a coherent story. After a few minutes she said, “Please tell me there’s no chance I could go to jail.” I replied, “There is no chance you could go to jail,” and she relaxed and achieved some composure. My statement was inaccurate in two respects: first, it implied that I had a professionally adequate basis for such an opinion, when in fact I did not know either what the law said or what the relevant official practices were; and second, there was in fact a chance, albeit a small one, that she could have gone to jail. I did not qualify or correct the statement when I learned more. Had I done so, I don’t think she would have been able to focus on anything else or to achieve enough composure or confidence to engage in anything that could plausibly be called decisionmaking.

In Mrs. Jones’s case, I think my friend and I should have either omitted mention of jail entirely or characterized it in the way I did to the welfare client. Mrs. Jones was a considerably more self-possessed woman; she was intelligent, and her anxiety was no greater than I’d guess the median person’s would be in her situation. Still, I think she was bound to be disabled by any description of jail as a real, even if small, possibility.

What about the option of the race discrimination defense? This defense is almost impossible to establish, and we had no evidence for it other than Mrs. Jones’s testimony of some vaguely racist police *220 statements and the fact that the police had insisted on prosecution after the other driver had withdrawn her complaint. The probability that the client, when fully informed, would want to proceed with the defense, seems low. It would consume a lot of scarce time to fully discuss this option. Moreover, there’s some danger that the client wouldn’t fully understand the situation, and would choose the defense without appreciating its disadvantages.

Some such reasoning probably underlies the general practice of criminal defense lawyers of encouraging novice defendants to plead not guilty at arraignment without discussing the possibility that there might be moral, expiatory reasons why a defendant might wish to confess guilt even at the cost of making her strategic position more vulnerable. A small number of clients might, when fully informed, decide to plead guilty for such reasons, but lawyers do not explore that possibility in part for fear of wasting the time of or confusing the others.

I don’t find such reasoning entirely convincing in Mrs. Jones’s case. Mrs. Jones’s chances of success on the discrimination claim were no less than her chances of going to jail. She clearly thought she was the victim of official racism. An acquittal would not have specifically vindicated this dimension of her grievance. The opportunity to bear witness in public to the grievance, even if it were not officially vindicated, might have been of some value to her.

In any event, the reasons that lawyers seem to find adequate for not mentioning the racism defense are hard to distinguish from the reasons they seem to find inadequate for not mentioning the jail penalty. The lawyers’ tendency to attach more importance to the prescribed penalty than to the defense seems to arise at least in part from influences other than understanding of clients. One such influence is the positivist strain of professional legal culture that tends to privilege specific statutory language over common-law or constitutional principle and material over nonmaterial consequences. Another such influence is a risk aversion of the lawyer that may give priority to avoiding the possibility of disappointing the client (and even provoking malpractice claims) over achieving some benefit that the client does not anticipate. By letting the client assume that there’s no way to raise the race discrimination claim, the lawyer eliminates the risk that the client will blame him if the claim is asserted and fails.

IV.

I should now acknowledge a point that often concerns people *221 about Mrs. Jones’s case. Mrs. Jones was elderly, female, black, and of modest means; my friend and I were none of these. She probably had a vast lifelong experience of subordination and marginalization of kinds that we knew only through imagination. In these circumstances, the dangers were great that we would fail accurately to understand her, that we would compound her oppression by interpreting her in terms of inappropriate assumptions conditioned by the dominant culture.

Indeed, ever since I entered Mrs. Jones’s plea, I have believed that my friend succumbed to just such dangers: class and race prejudice inclined him to see avoiding sanctions as the only thing Mrs. Jones really cared about. On the other hand, even as I have reproached myself for deferring to my friend, I have flattered myself that I appreciated Mrs. Jones’s sense of dignity and the likely importance to her of vindication by acquittal.

However, several friends who read earlier drafts of this Essay have persuaded me that I failed to consider adequately the possibility that my own views were conditioned by prejudice. Perhaps I was just smugly attributing my own liberal upper-class moralism to her. I never considered how the fact that I had no reason at all to fear the kind of risks facing Mrs. Jones, might lead me to overly discount them and how my generally more satisfying experience with official institutions might lead me to overvalue official vindication.⁴

Now that I have considered these possibilities, I still think my original interpretation was right. (I just can’t see Mrs. Jones’s moralism as a projection of my own. I had lots of observations to support my interpretation. After all, the only initiative she took in the whole relation was to bring her minister with her to testify to her character.) But I have considerably less confidence in my judgment about Mrs. Jones than I used to have, and I recognize that in more ambiguous situations the dangers of misinterpretation would be very high.

Such observations might lead some to conclude that lawyers like me are so ill-equipped to understand clients as socially distant as Mrs. Jones that it would be better if we didn’t try. Or that we are likely to do more harm than good if we challenge the client’s initially articulated choice or if we tell the client what we think the better choice would be. Perhaps, for example, the effort to empathize and *222 establish rapport with a client like Mrs. Jones threatens to unleash in the lawyer unconscious feelings of prejudice that are more likely to be held in check when the relation remains more formal and emotionally sterile.⁵ Perhaps such an effort threatens to induce in the client an inappropriate trust and dependence.

I don’t agree with these views, at least when put categorically. I think they underestimate the capacity of people to empathize across social distance (though I agree this requires training and effort). Moreover, social distance from the client is not entirely a disadvantage; we associate distance with detachment as well as alienation. A lawyer socially closer to Mrs. Jones might have been less conscious of the distance that remained and more ready to attribute his own values to her than I was.

Even if I am wrong about this point, however, I don’t think it affects my principal argument. The point that establishing empathy and rapport can be dangerous is not an argument against paternalism or for autonomy. Empathy and rapport are no less important for autonomy than for paternalism. If at all plausible, the judgment that the lawyer should not strive for empathy and rapport will be based in part on an assessment of whether the outcomes associated with such an effort are, on balance, in clients’ best interests.

V.

Let’s consider some descriptions of the contrasting approaches to counseling in the autonomy and paternalist views. Begin with a crude but nevertheless influential version of the autonomy view: the lawyer’s job is to present to the client, within time and resource constraints, the information relevant to the decision at hand. The lawyer discharges her function when this information has been presented, and whatever decision the client then articulates is deemed autonomous.

This crude formulation is unworkable and implausible. It is unworkable because it does not provide any criteria of relevance, and because it ignores that the most obvious criteria-the client’s goals and values-are not immediately accessible to the lawyer. It is implausible because it measures autonomy simply in terms of the information the lawyer presents without regard to whether the way *223 she presents it influences the decision or whether the client is emotionally or cognitively able to make effective use of the information. On the crude autonomy view, my pediatrician could have fully discharged her duty by telling me the probabilities associated with the vaccination decision even though I felt unable to make any use of this information.

Thoughtful autonomy proponents do not argue for this crude view. In their refined version, the lawyer’s duty is to present the information a typical person in the client’s situation would consider relevant except to the extent the lawyer has reason to believe that the particular client would consider different information relevant, in which case she is to present that information. The lawyer has to start by imputing the goals of a typical client to the actual client because before she knows the client she has no other basis for understanding.

But in this refined autonomy view the lawyer has a duty both to educate herself about the particular client’s concerns and to assist the client in making use of the information the lawyer provides.⁶ Here the client’s autonomy is as much a goal as a premise of the counseling relation.⁷ The refined view contemplates a dialogue in which the lawyer adjusts her presentation as she learns more about the client’s concerns and abilities and in which she is as much concerned with relieving the client’s disabling anxieties and enhancing her cognitive capacities as she is with simply delivering information.

Now consider the paternalist view-first in a crude version. In this view, the lawyer simply consults her own values; she asks what she would do in the client’s circumstances or what she thinks a person with some general characteristic of the client should do and tries to influence the client to adopt that course.

Two versions of more refined paternalist views are associated with the University of Maryland School of Law. David Luban has argued that paternalist coercion is justified when, among other conditions, the client’s articulated goal fails to meet a minimal test of objective reasonableness.⁸ On the other hand, in his Sobeloff Lecture, Duncan Kennedy argued for paternalistic coercion on the basis *224 of “lived intersubjectivity.”⁹ He justified paternalism where the actor was convinced that the subject’s articulated choice did not truly express his identity, for example, because of fear and depression.

In contrast to Luban’s Kennedy’s approach is triggered by a concrete sense of the particular subject. Here the paternalist judgment does not hold the subject to an external standard such as reasonableness, but holds him to an interpretation of the subject’s own projects and commitments. The paternalist works for the choice that seems most consistent with her understanding of who the client is. When she disregards the client’s articulated choice, she has concluded that the client has misunderstood either himself or how the options relate to his deeper goals. The Luban and Kennedy approaches are not incompatible, and the refined view should make room for them both.

The two aspects of the refined paternalist view can be readily applied to Mrs. Jones’s case. The concerns about Mrs. Jones’s request for me to make the decision for her seem to resonate with Luban’s perspective. It wasn’t reasonable for her to want to put her fate in the hands of someone as inexperienced and ignorant as me. On the other hand, the concerns about her ultimate decision seem to resonate with the Kennedy perspective. There’s nothing unreasonable in any general sense about the decision to accept the plea bargain. It would be the right choice for many people-for example, for someone with no strong sense of dignity, with no respect for authoritative public pronouncements, and with no tolerance for conflict or the stress of self-presentation in public. But Mrs. Jones seemed to be a different person. There’s at least a suspicion that I let her make the wrong choice, given who she was.

My claim is that, once we get beyond the crude versions, it is hard to distinguish the autonomy and paternalist views. Each refined view contemplates a dialogue with the client that it recognizes is both essential to understanding the client and fraught with dangers of oppressing or misunderstanding him. Each refined view involves a dialectic of objective constructs (the “typical client” presumption or the minimal reasonableness test) and efforts to know the client as a concrete subject. The paternalist view is intensely individualistic to the extent that it aspires to deep knowledge of the client as a concrete individual and grounds the lawyer’s decision in the client’s self-realization. Even where it disregards client choices because they fail the minimum reasonableness test, it is not *225 denying the value of autonomy, just that the particular client has the capacity for autonomous choice. Conversely, the refined autonomy view is quite collectivist to the extent that it licenses the application of objective “typical” client presumptions to the particular client. And to the extent that it differs from the paternalist view in failing to apply a minimum reasonableness test, that difference, though perhaps defensible on other grounds, is not plausibly grounded in the value of autonomy, since that value presupposes a capacity for rational choice.

David Luban suggests that the defining and problematical feature of paternalism is its commitment to particular “conceptions[s] of the good life.”¹⁰ But the most notable theory of “the good” to come out of the law schools in recent years defines the good in terms of the “choices” people make when not under “domination.”¹¹ This sounds very much like a theory of autonomous choice.

A genuine conflict between autonomy and paternalism would require a view that contained both a thick theory of the good that did not depend on individual choice and a notion of individual choice capable of envisioning choices that violate the good as autonomous. It is not hard to find examples of such views-for example, in most versions of Christianity and other scriptural religions-but they seem to have little direct influence within the legal profession.

If the debate between the autonomy and paternalist views is so often moot, why does it inspire so much energy and emotion? My guess is that the debate expresses the anxiety that lawyers, especially those who represent clients socially distant from themselves, feel about getting to know their clients and about assuming responsibility for them. The process of learning to understand and communicate with a stranger is usually difficult and often scary. Moreover, as I’ve emphasized, in this process the lawyer inescapably exercises power over the client. The issues that have to be decided are tremendously difficult, and the stakes are often very high. In these circumstances, lawyers often find the demands of connecting with the client and the responsibilities of power emotionally overwhelming.

The crude autonomy view is attractive to lawyers because it absolves them of the burdens of connection and the responsibilities of power by suggesting that they can perform their duties simply by presenting a professionally defined package of information. Both the crude and the refined paternalist views are frightening because *226 both emphasize the inescapability of lawyer power, and the latter emphasizes as well the duty to connect with the client. So of course does the refined autonomy view, but perhaps the rhetorical association of the refined autonomy view with the crude one evokes some of the psychologically comforting associations of the latter and makes it more palatable than refined paternalism, even when they are functionally indistinguishable.

CONCLUSION

I don’t claim that we can never plausibly conceive of a meaningfully autonomous choice that is not in the chooser’s best interests. But I would argue, at least, that there is a large category of cases involving legal decisions, where, given the circumstances in which the decisions must be made, we have no criteria of autonomy entirely independent of our criteria of best interests. Many of the best reasons we have for thinking that Mrs. Jones’s choice was not autonomous are the reasons we have for thinking that it was not in her best interests.

INTRODUCTION

       Following the advice of his counsel, Hernando Williams pleaded guilty to murder, kidnapping, rape and robbery. He was sentenced by a jury to death. [FN1] On appeal, Mr. Williams claimed that his guilty plea was coerced and involuntary. At a post-verdict hearing, one of his defense attorneys had testified in detail to what the Court of Appeals described as the defense team's “methods of persuasion.” [FN2]

        As a response to our client's position, the four of us as well as [the psychologist] attempted to persuade [sic] the defendant that a plea of not guilty would be a mistake .... In this case the psychological pressure and the sophisticated tactics used with Hernando Williams to convince him to adopt our approach were unlike any other conversations I ever had with any other client. Also, it goes without saying, that in this case there were no plea bargaining offers from the State. All of the psychiatric and psychological information which had been gathered and developed by [the doctors] was used by me and my associates to compel Mr. Williams to accept our point of view. This constituted a unique form of coercion. We took advantage of our client, maximizing the use of the information we had gathered for a purpose other than which it was intended. Our strategy was developed to accommodate us and not our client. There is no *842 question that during this period (which lasted over a year) we did not act in accordance with our client's wishes. Rather, we used every means available to force him to change his plea. [FN3]

       The court denied the defendant's motion and observed that “Mr. Williams' attorneys concluded that a guilty plea was in his best interests and used verbal persuasion to convince [him] to plead guilty ... ‘[a]dvice–even strong urging’ by counsel does not invalidate a guilty plea.” [FN4]

       Wesley Trahan pleaded guilty to rape and was sentenced to life imprisonment, the maximum permissible sentence. [FN5] Mr. Trahan filed a petition for a writ of habeas corpus, claiming that his plea was involuntary and without the effective assistance of counsel:

        [Defense counsel] explained that his practice was to advise clients of the factual strength of the state's case in light of applicable law and then to allow them to make their own decisions as to how to plead to the extent they were capable. [FN6]

       Commenting on the attorney's neutrality when counseling clients about the advisability of accepting a plea offer, Judge Goldberg wrote in a concurring opinion that “this practice is certainly to be commended in the general run of cases ....” [FN7]

       Williams and Trahan present two vastly different counseling methods, yet in both cases the conviction by plea was upheld. Courts approve polar opposite approaches to counseling–utilizing “a unique form of coercion” versus remaining neutral. The fundamental question thus becomes what counseling obligations the Constitution requires.

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       *847 The question of trial-related activities has been overemphasized. It is time to focus on the constitutional requirements of counseling criminal defendants. What must defense counsel do in order to satisfy the constitutional mandate of effective assistance of counsel in the context of the acceptance or rejection of a plea?

       The recent decision by the Court of Appeals for the Second Circuit in Boria v. Keane [FN41] addresses this crucial question. This case's holding and analysis have profound implications for the caliber of representation provided to all criminal defendants, as well as for long-standing clinical legal educational notions of client-centered counseling. [FN42] Oscar Boria was convicted after a jury trial and sentenced to twenty years to life imprisonment. He moved to set aside his conviction, claiming that his attorney, in failing to advise him to accept an offered plea bargain of one to three years incarceration, did not provide effective assistance of counsel. [FN43]

       Defense counsel readily admitted that he never counseled the defendant whether or not to accept the plea–a decision, in his view, for a defendant to make. [FN44] He did, however, discuss the plea repeatedly with the defendant, point out the implications of rejecting it, review the suppression hearing issues and inform the defendant that in his view the chances of prevailing at trial were slim. [FN45] According to defense counsel, the defendant steadfastly maintained his innocence, and told him that he would not plead guilty, especially if a plea included a jail sentence. [FN46]

       Granting the defendant's petition for a writ of habeas corpus, the court of appeals held that the Constitution requires that defense counsel*848 provide an informed opinion on whether to plead guilty or go to trial. [FN47] The court ruled that the defendant had a “constitutional right to be advised whether or not the offered bargain ‘appeared to be desirable.”’ [FN48] Because the defense attorney never actually advised his client whether or not he should accept the plea offer, he failed to provide the requisite effective assistance of counsel.

. . .

       In this Article, I explore the defense attorney's constitutional obligations to clients in the context of the decision whether to plead guilty or to go to trial. I examine the implications of the Second Circuit's analysis in Boria for courts' evaluations of effective assistance of counsel and for clinical legal scholarship's formulations of client-centered counseling.

       Part I describes the development of the effective assistance of counsel doctrine and its relation to client counseling. Part II analyzes the concept of client-centered counseling and its implications for an attorney's role in advising clients, concentrating on clinical legal scholars' attempts to apply client-centered counseling to clients in criminal cases. Part III evaluates in greater detail the history and holding of Boria: a curious succession of opinions in the case evidences the court's struggle to define an attorney's constitutional obligations when counseling a client. I analyze the effect of the Court of Appeals's final opinion in Boria on the provision of services to defendants in criminal cases, and on the continued viability of traditional definitions of client-centered counseling.

       Part IV argues that the final, published holding in Boria did not go far enough to ensure that defense attorneys provide the effective assistance of counsel. Rather, the court's original opinion–one imposing an obligation on criminal defense attorneys to advise their clients, whether or not they are asked, on the wisdom of accepting or rejecting a plea, and also to try to persuade their clients to accept their advice–was more likely to breathe life into the constitutional guarantee of effective assistance.

*850 I. DEVELOPMENT OF THE CONSTITUTIONAL REQUIREMENT OF EFFECTIVE ASSISTANCE OF COUNSEL AND ITS APPLICATION TO COUNSELING DEFENDANTS IN CRIMINAL CASES

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1. CLIENT-CENTERED COUNSELING

       The concept of client-centered lawyering grew out of concerns about the attorney-client relationship and the allocation of decisionmaking authority. The so-called traditional view of lawyering assumed that clients should be passive and delegate decisionmaking responsibilities to their attorneys. [FN218] Counseling consisted of the lawyer spelling out the pertinent legal considerations, specifying what the attorney believed was the right decision and urging the client to accept that recommendation. [FN219]

       Client-centered counseling, on the other hand, requires that attorneys listen to their clients and ensure that clients assume an active and primary role in making decisions about their cases. [FN220] The emergence of models of client-centered lawyering is related to the growth *877 of clinical legal education in the 1960s and 1970s. [FN221] Clinical legal education was in many ways a response to the needs of poor people for legal assistance. [FN222] A majority of clinical faculty came from legal services or public defender offices and were well-versed in the problems inherent in the attorney-client relationship. [FN223] Early on, clinicians criticized public interest lawyers for forcing decisions upon their clients, and emphasized the need to promote increased client participation in the resolution of their cases. [FN224] Constructs of client-centered lawyering grew out of this backdrop.

       The most widely utilized paradigm of client-centered lawyering is that proposed by Professors David Binder, Paul Bergman and Susan Price. [FN225] In Legal Interviewing and Counseling, [FN226] Binder and Price suggest a counseling method created to promote client decisionmaking, and exhort attorneys to ensure that clients are enabled to make their own decisions. [FN227] To avoid unduly influencing the client, the attorney should “communicate neutrality” [FN228] and not offer advice or opinions, even if the client asks directly. [FN229] Scholars have posited a variety of justifications in support of the paramount importance of client decisionmaking. Chief among them is the argument that client decisionmaking*878 reinforces the laudable ideal of individual autonomy. [FN230] Some have argued that doctrines of informed consent applicable to the doctor-patient relationship should be adapted for use in the legal arena. [FN231] Just as a doctor cannot control a patient's treatment without the patient's consent, attorneys should have to involve clients unequivocally in the decisionmaking process. [FN232] Although Binder and Price seem to suggest that standards of professional ethics also support their conceptions of client-centered decisionmaking, [FN233] others have argued that both the Model Code of Professional Responsibility and the Model Rules of Professional Conduct are equivocal as to the proper allocation of decisionmaking authority. [FN234]

       The Binder and Price model has not been free from criticism. In particular, many have argued that the requirements of neutrality and the concomitant withholding of the attorney's opinions are undesirable and nearly impossible. [FN235] In 1991, Binder and Price, along with Paul Bergman, revamped their analysis of the propriety of lawyers giving advice. [FN236] Binder, Bergman and Price still trumpet the need for lawyer neutrality as a central feature of client-centered counseling; [FN237] they extol explicitly the value of autonomy. [FN238] They now write, however, that considerations of autonomy dictate that in some situations, the attorney may provide an opinion. [FN239] If the lawyer has counseled a client *879 thoroughly so that the lawyer can base her opinion on the client's subjective values, then she may provide an opinion to a client who requests it. [FN240] Reflecting their newfound willingness to permit lawyer involvement in decisionmaking, the authors now also allow lawyers, in limited circumstances, to offer unsolicited opinions. When a client is unable to make a decision, whether due to the client's personality or the difficulty of the problem, a lawyer may offer an opinion in order to break a “decisional logjam.” [FN241] Furthermore, Binder, Bergman and Price now authorize lawyers to intervene in their clients' decisions when they believe the decision is erroneous because the client has misjudged the likely outcome, or when they believe the decision is morally wrong. [FN242] By permitting lawyers to give opinions and intervene in certain situations, the authors appear to have responded to some of their critics. In relaxing the prohibitions against lawyer involvement in the decisionmaking process, however, they subject themselves to the criticisms leveled against the traditional lawyer-client relationship that led to the development of client-centered counseling in the first place. [FN243]

       It is noteworthy that Binder, Bergman and Price have attempted to move beyond the public interest or poverty law arena. Although client-centered counseling was in many ways an outgrowth of the experiences of lawyers in legal services settings, [FN244] Binder, Bergman and Price consciously provide examples of legal problems in a variety of litigation contexts, and discuss numerous issues that arise when counseling private parties in business transactions. [FN245] This Article, however, *880 is concerned with counseling defendants in criminal cases, specifically indigent clients [FN246] and clients with constitutional rights, both to counsel and to the effective assistance of that counsel. [FN247] In-house, or live-client, law school clinics are, similarly, primarily involved with poor clients. [FN248] This Article analyzes the applicability of the Binder, Bergman, and Price model in that context.

       Robert Dinerstein's essay discussing an experience of his while supervising students in a law school criminal clinic, although not intended as an example of client-centered counseling in practice, raises difficult and important questions regarding the counseling responsibilities of lawyers in criminal cases. [FN249] The criminal justice clinic received the case after the defendant had been convicted at a bench trial. Local procedures permitted a trial de novo, and the case was scheduled for a jury trial in less than four weeks. The defendant was charged with two counts of battery. At the initial interview, the client's factual recitation was similar to that told by the prosecution at the first trial, but she disputed her motivations for her acts. She claimed that the complainant had waved at her with an outstretched palm, a sign of disrespect in her culture. As a result, she swung a tennis racket at the complainant.

       The defendant informed her student attorneys that she was unhappy with her first lawyer because he had “strongly urged” her to accept a negotiated disposition, [FN250] and she insisted that she wanted to go to trial in order to “tell her story.” [FN251] The students counseled the client thoroughly about her options, predicted the legal consequences of each choice and left the decision to the client. They informed her that based on their research, the likely result of a trial was a conviction. The student attorneys did not offer an opinion about the desirability of accepting or rejecting a plea offer, and did not in any way attempt consciously to influence their client's choice. The defendant opted for a trial.

        *881 On the eve of trial, Dinerstein met with the student attorneys and emphasized the importance of telling the client that if she told the story that she had told them, their judgment was that there would be a conviction. Dinerstein observed that although he believed that such counseling was required by a client-centered approach, he worried whether it was a “subtle attempt” to convince the client to change her mind. Apparently, the possibility of advising the defendant as to the desirability of a plea offer (that is, whether in Dinerstein and the students' opinion it was the best choice) was not considered. The next day, the students spoke with their client and she still wanted a trial.

       As Dinerstein notes, the trial was in many ways the least important part of the story. [FN252] In short, during deliberations the defendant and the students had a “heated discussion.” She felt that her case had not been presented forcefully enough. The jury returned a verdict convicting her of one of two counts. As the judge began to address the students, their client grew increasingly agitated, yelling and interrupting the judge. The judge ordered the sheriffs to take her to a local emergency room for psychiatric evaluation.

       William Simon also detailed his counseling experience representing a client in a criminal case. [FN253] [remainder of paragraph omitted because it describes Simon article that you were assigned.]

       In neither case did counsel offer an opinion about the desirability of accepting or rejecting the plea offer. In Dinerstein's case, the client never asked for the attorney's opinion. In Simon's case, the client asked expressly, and apparently repeatedly, for the lawyer's advice. In both cases, the attorneys spelled out the advantages and disadvantages. In Dinerstein's case, the student attorneys made a deliberate attempt at neutrality. In Simon's case, co-counsel made an apparently deliberate attempt to influence the client's decision.

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       It is instructive to view counseling in terms of a continuum, with neutrality at one end and urging at the other: [FN297]

              neutral – suggest – advise – urge

An attorney is neutral when she attempts to take no position with a client as to the advisability of accepting or rejecting a plea. The attorney refrains from phrases such as, “perhaps you might consider” or “in my opinion you should,” and instead tries to convey impartiality. By suggest, I mean mentioning or implying as a possibility, or offering for consideration. [FN298] Taken literally, suggestion includes an attorney's saying, “I suggest that you consider the possibility of ....” For present purposes, to advise is to offer an opinion on the wisdom of pleading guilty or opting for trial, [FN299] as, for example, “I advise you to accept/reject the plea offer.” An attorney urges a particular choice when she advocates or demands earnestly or pressingly that a client accept the decision that she recommends. [FN300]

       In order to delineate counsel's constitutional counseling obligations, it is necessary to consider this continuum in the context of the permissive (what counsel may do), the hortatory or aspirational (what counsel should do), and the required (what counsel must do). Before Boria, the range of constitutionally permissible behavior was expansive, ranging from neutrality to aggressively urging a client to make a particular decision. Although there were some general pronouncements about what counsel should do, the only affirmative obligations were that counsel conform to the general standards of Strickland and, in essence, perform in a reasonable manner. [FN301] As a result, the attorney's role was circumscribed only to the limited extent that counsel must *889 inform the client of a plea offer, [FN302] must provide accurate and complete information, [FN303] and must ensure that any advice, opinions or predictions she chooses to provide are reasonable. [FN304]

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2. THE PROPER ROLE OF DEFENSE COUNSEL

       It is no longer reasonable to argue that counsel should play a neutral role in the crucial decision of whether to plead guilty. It is not a matter of personal feelings, strategy or ethics, but a constitutional mandate. The result reached in Boria v. Keane was correct, but the court should have retained the language from its original opinion that exhorted defense attorneys to advise clients whether to plead guilty or proceed to trial, and, if necessary, to attempt to persuade clients to accept their advice.

. . . 

       Once it is necessary to advise and urge acceptance of the advice, the remaining issues are determining what advice to impart, and how to convey it. The content of the advice, whether to accept or reject a plea offer, will depend on the particular case. [FN345] Among the relevant considerations are the strength of the prosecution's case, the merits of the defense theory of the case, the possible consequences of a conviction*896 and, of course, the defendant's objectives and concerns. [FN346] For many, if not most, defendants, the primary concern is maintaining, or regaining, their liberty. [FN347] The likelihood of receiving a much more severe sentence if convicted after trial leads many defendants to enter guilty pleas in order to reduce their exposure. [FN348]

       It is insufficient for a lawyer merely to give an opinion, devoid of the predicate for the recommendation. Counsel should provide her opinion and the bases for it. To do otherwise renders the advice hollow. The client is entitled to, and will need to know, the reasons why the attorney favors a particular decision. In the course of explaining thoroughly her rationale, the lawyer will inevitably engage in an effort to persuade the client of the wisdom of her advice. This marshaling of the factors that led the attorney to advocate for a particular decision should be done deliberately, consciously and openly, as a necessary component of counseling about the merits of a plea offer. The client's decision will then be the fully informed product of forthright, honest representation.

       Even after thorough counseling, a client might disagree with the attorney's advice. The question then is the extent to which counsel should persist, and the method to be used, in urging the client to accept the recommendation. Professor Amsterdam writes that “[t]he limits of allowable persuasion are fixed by the lawyer's conscience.” [FN349] Another scholar observed that “some rather forceful language may be necessary,” and referred to the use of “badgering,” “cajolery,” and “verbal abuse.” [FN350] Often, counsel's persuasion is of a more subtle nature. [FN351] Defense counsel should attempt to persuade a client to accept *897 advice in a manner consistent with an empathetic and compassionate approach to counseling. [FN352]

       Obviously, the difficulty of the decision affects the attorney's approach to counseling. If, after weighing all the factors, [FN353] the attorney believes that the best choice is insufficiently clear, the nature of the advising will be different from when the attorney believes the best choice is evident. One need only contrast the situation where counsel estimates that an acquittal is unlikely and a severe sentence after trial is expected, with one where counsel believes that the chances of a conviction and increased sentence are by no means clear. The clearer the choice, the more counsel should attempt to influence a client's decision. [FN354] Counsel should assert her opinion commensurate with the clarity of her decision, and so as to ensure that the client understands completely her advice and its foundation.

       . . .

       Even in situations where counsel exerts tremendous efforts to persuade the client, there will be occasions when the client rejects counsel's advice. In fact, because the accused makes the final decision, the attorney must strive to leave room for disagreement and must make sure that the client is aware that she will represent him zealously in any event. [FN359] Obviously, this is a delicate task, and counsel must be vigilant *898 so as not to cause irreparable damage to the attorney-client relationship, especially in cases where the client chooses to proceed to trial. This necessary risk dictates that counsel must give careful thought to the method, as well as the content, of counseling.

       Adopting this approach to counseling will necessitate changes in the analysis of ineffective assistance of counsel claims. Evaluating whether a lawyer offered an opinion is a straightforward inquiry. It is also not difficult to determine if a lawyer attempted to convince a client to accept that opinion. It is, however, a formidable challenge to assess the extent and quality of counsel's efforts to persuade. Prior to Boria, the issue was whether counsel's neutrality was reasonable, or, if counsel ventured an opinion that the client rejected, whether the decision not to try to persuade was reasonable. If counsel were required to offer an opinion and to try to prevail upon a client to accept it, the focus would become the nature and quality of the attempt. Although a difficult task, [FN360] examining whether counsel's efforts were within the range of acceptable professional behavior is an analysis similar to that which the courts have already been undertaking.

       The rationale for this view of counseling in criminal cases extends beyond constitutional interpretations of the meaning of effective assistance. As a general matter, when someone hires a professional, the client expects and demands the benefit of the professional's training, experience, and hopefully, wisdom. Although the plea decision is the defendant's, courts have observed that “it is the attorney, not the client, who is particularly qualified to make an informed evaluation of a proffered plea bargain.” [FN361] Imagine that a medical emergency leads you to consult with a doctor. The doctor carefully and meticulously lays out your options but does not give an opinion as to which course of action she recommends. Surely, you would expect that you are entitled to her expert opinion and not just her information. In fact, we are all too familiar with stories of doctors, and indeed lawyers, declining to offer opinions for fear of being subjected to lawsuits if their advice turns out *899 to be incorrect. [FN362] The patient, or client, requires, and is entitled to, the professional's opinion, augmented by its underlying justifications.

       It is critical, however, that the training, experience and wisdom must be combined with compassion and empathy. [FN363] An attorney motivated by empathy, and acting with compassion, will provide the client with all the reasons, all that she is weighing, as part of a conversation with the client, so that the client will appreciate the grounds for the advice. Counsel must allow ample opportunity for the client to ask questions and voice concerns. Returning to the medical analogy, a patient's expectation, or hope, is that a doctor will not simply tell her which option to pursue, but instead will define the options, offer an opinion, and explain the bases for that opinion carefully, compassionately and responsively.

       Professors Binder, Bergman and Price emphasize that “decisions should be made on the basis of what choice is most likely to provide a client with maximum satisfaction.” [FN364] They argue that client decisionmaking increases the likelihood that clients will attain “maximum satisfaction.” [FN365] This does not militate against an attorney attempting to persuade a client. If an attorney assumes a more active role in the decisionmaking process, offers advice, and when necessary, attempts to persuade a client to accept that advice, the goal of client satisfaction is more likely to be achieved because the client's decision will be the informed result of thorough attorney-client discourse.

       Numerous studies document the dissatisfaction that many criminal defendants feel toward their appointed lawyers. [FN366] Perhaps the primary complaint is that their attorneys tell them what to do rather *900 than discuss strategy and options. [FN367] Certainly, if an attorney takes that approach to counseling, the result will be dissatisfied clients. Imagine that after consulting a doctor about a medical condition, the doctor, without taking any time to explain, simply told you what to do. It is unlikely that you would be a satisfied patient. On the other hand, if the doctor, or attorney, counsels with empathy and compassion, and engages the patient, or client, in an active discussion which includes opinions and the bases for those opinions, then client satisfaction should be achieved since the client's decision will be the product of informed counseling. [FN368]

       The dangers of paternalism, and the attorney's subordination of her client, are very real and cause for great concern. Certainly, criminal defendants can and do understand many of the complexities of their cases, and are the ones most acutely aware of the consequences and gravity of all decisions. [FN369] It is painfully ironic that for many defendants, their attorneys serve only as another oppressive force that they must endure. In Jones v. Barnes, [FN370] the Supreme Court held that appellate counsel may choose not to raise points requested by the defendant. Justice Brennan, in dissent, argued that the majority's decision meant that “ i n many ways, having a lawyer becomes one of the many indignities visited upon someone who has the ill fortune to run afoul of the criminal justice system.” [FN371] In what sounds like a paean to client-centered counseling, Justice Brennan also observed that “today's ruling denigrates the values of individual autonomy and dignity central to many constitutional rights, especially those Fifth and Sixth Amendment rights that come into play in the criminal process.... The role of the defense lawyer should be above all to function as the instrument *901 and defender of the client's autonomy and dignity in all phases of the criminal process.” [FN372] The present issue, attempting to persuade a client to accept advice, is vastly different from the one raised in Barnes. The attorney does not overrule, ignore or retain the final authority, but rather attempts to persuade. The “ultimate authority” is, and must be, the defendant's. [FN373] The issue is not whether counsel prevailed upon her client to accept her advice. What matters is that she provided her client with the benefit of her advice, and attempted to explain and persuade the wisdom of her view. In Boria, defense counsel gave no advice on the wisdom of accepting a plea. The court held that effective assistance of counsel requires counsel to offer an informed opinion on the plea decision. In an attempt to clarify its initial opinion, the court held subsequently that by no means did the original opinion hold that counsel was ineffective if she failed to convince a client to plead. [FN374] That is quite a separate issue from whether counsel even has a duty to try to convince a client to plead. It is the effort that should matter with respect to counseling, not necessarily the result. Similarly, in State v. Bristol, [FN375] the lawyer did no more than advise his client to “seriously consider” the offer. In response to the defense argument that additional persuasion was required by the Sixth Amendment, [FN376] the court held that there was no authority for the position that an attorney who fails to convince a client to plead provides ineffective assistance. [FN377] Again, the focus on the result is misplaced. As long as counsel made efforts to persuade, that should be sufficient. The court in Jones v. Murray [FN378] made a similar leap of logic. The defendant claimed that counsel was ineffective for failing to make any recommendation regarding the plea offer, as well as for not attempting to persuade him to plead guilty. The court ignored the critical question of whether the lawyer was required even to offer an opinion on the desirability of the plea bargain, and held that counsel's decision “to refrain from a vigorous attempt to change his client's mind” was permissible. [FN379]

        *902 The concerns of paternalism that fuel much of client-centered lawyering lead many to withhold their opinions or advice from clients. Such a strategy is itself susceptible to allegations of paternalism. [FN380] The decision to deny this information to a client rests on the assumption that a client is incapable of listening, processing information and making an informed choice. [FN381]

       It must also be acknowledged that many criminal defendants, for a variety of reasons, are not well-suited to make such a critical choice. Numerous studies establish undeniable links between crime and mental illness, and the number of inmates with some form of mental disability is extremely high. [FN382] The prevalence of chronic alcohol and/or drug abuse among inmates has been documented by countless studies. [FN383] Given that the urban poor comprise the majority of those who are incarcerated, [FN384] it is important to acknowledge the effects of what has been referred to as socio-economic deprivation or “rotten social background.” [FN385] Malnutrition, lead poisoning, inadequate medical*903 care and other by-products of environmental deficits can certainly impact adversely on cognitive development. [FN386] All these conditions may contribute in whole or in part to the possibility that a defendant may be unable, or ill-equipped, to make a decision of this magnitude. [FN387]

       Even for those defendants unaffected by organic or physical impairment, the stress of this critical decision can act as an inhibitor to rational, careful decisionmaking. [FN388] The medical analogy is once again illustrative. It is easy to imagine the magnitude of the decision adversely affecting someone's ability to choose among available options. One scholar, confronted with the difficulty in deciding between medical options available for his child, observed that when the decisionmaking involves anxiety and outcomes that evoke strong emotions, the ability to decide calmly and rationally is compromised. [FN389] The “assembly line” nature of the criminal courts is also not conducive to calm reflection. [FN390] Cases are heard only briefly, and there is pressure to resolve the charges quickly. [FN391] Defense counsel, accustomed to the pace and experienced in navigating through these obstacles, is often better able to parse through the available alternatives and reach a conclusion as to the best option.

       It is important to recognize that it is far easier emotionally to refrain from attempting to influence a client. In those cases where counsel believes that the client's rejection of a plea offer is unwise, counsel will be spared the unpleasant and painful task of trying to convince someone to plead guilty. [FN392] This is an unrewarding endeavor. It often creates conflict between lawyer and client. [FN393] Counsel is put in the position of being the bearer of bad news, and of having her *904 motivations and allegiances questioned by her client. Most public defenders who have been in this situation are familiar with being called sellouts, functionaries or worse by their clients. Unlike when a trial ends in an acquittal, there is no feeling of elation if counsel succeeds in convincing the client to accept her advice. In fact, counsel and client are usually left discontented. [FN394] From counsel's point of view, it would be much easier when a client says, “I don't want to plead guilty to that offer,” to respond enthusiastically, “Great, let's go to trial.” This response, although easier emotionally, avoids the larger concern: in counsel's judgment, a trial will result in a conviction and a greatly enhanced punishment.

       Certainly, there are defense attorneys who impose their will on clients for invalid reasons and in overbearing, inappropriate ways. All too often, the results of those encounters are guilty pleas. The derogatory views of defendants toward their attorneys are no doubt grounded in the grim realities of courthouse regulars pleading everyone guilty in order to earn a quick fee, to avoid the preparation and work required by a trial and to appease the local criminal justice bureaucracy. [FN395] Nevertheless, it is equally dangerous for an attorney to stand idly by when a client is set on a course that the attorney believes is self-destructive.

       My own eight years of experience as a staff, and then supervising, attorney at a public defender office leads me to suggest the following reasons why many defense attorneys do not intervene in their clients' decisions whether to plead guilty or go to trial. Some adhere to the principle of client autonomy and make conscious efforts to avoid impacting the client's decisionmaking ability. For these defense attorneys, the goal of client empowerment motivates them to strive toward creating an environment free from their influence, so that the client can make a truly independent decision. Animated by the recognition that “the defendant does the time, not me,” the attorney seeks to ensure client decisionmaking. It is debatable whether the criminal court is the place for someone to become empowered. I am reminded of an exchange at a public defender training. One lawyer stated that he became a public defender precisely to fight against the assembly line processing of guilty pleas, and that he would never try to persuade *905 someone to plead guilty. Another lawyer surmised that that lawyer would have more clients in jail, serving longer sentences, than attorneys who intervened in their clients' decisions. [FN396]

       In cases where the lawyer believes that a plea is the best option but the client decides on a trial, the defendant's professed innocence often compels defense attorneys to keep their opinions to themselves. There are defense attorneys who believe that once a client asserts innocence, professional ethics or individual morality render plea discussions inappropriate. In Boria, the defendant's insistence upon his innocence surely contributed to his attorney's reluctance to suggest that he accept the plea offer. Protestations of innocence aside, however, plea discussions should continue. For one thing, defendants are permitted to plead guilty, without admitting guilt, in order to avoid harsher punishment. [FN397] Even when the defendant has a bona fide defense, counsel may still advise a guilty plea. [FN398] There is also the possibility that a defendant will change his mind. As the court observed in Kates v. United States, [FN399] “I have seen many a defendant, seemingly utterly intransigent as to the possibility of pleading guilty, finally cave in when confronted with the ugly reality of what probably would happen to him if he did not.” [FN400] Given the well-documented lack of trust between defendant and defense counsel, [FN401] it may well be the rare case where the defendant admits guilt to his attorney. The civil context presents an apt comparison. Imagine that a defendant in a civil lawsuit tells the lawyer, “I did nothing wrong and will not settle.” It is hard to imagine that counsel would never, as a matter of counseling practice, advise the client to accept a settlement offer. [FN402]

        *906 A willingness to try to persuade involves the assumption of an awesome amount of responsibility. Many lawyers are simply loath to take on such a burden. [FN403] Some prefer remaining detached rather than getting involved in the emotions and anxiety that attend a decision of this magnitude. Others are motivated by fear of lawsuits or appeals based on allegations of improper coercion. They believe that the more the decision is the client's, the more they are insulated from potential liability. [FN404]

       Perhaps most important of all, many defense lawyers are not invested in, and empathetic toward, their clients. To these attorneys, the client is secondary. Take again the situation where counsel believes that a decision to go to trial is disastrous. The attorney conveys a plea offer and the client rejects it. Rather than intervene, counsel responds, “Fine, let's go to trial.” For this lawyer, a trial breaks up the drudgery of defense work, is exciting, and in cases involving assigned counsel, results in additional money. After trial, if, as expected by counsel, the client is convicted and sentenced more severely than pursuant to the plea offer, counsel is unaffected because it was, after all, the defendant's decision.

       It is the attorneys who care fundamentally about their clients who take an active role in decisionmaking. These are the attorneys who are affected when they see someone receive a sentence far in excess of what they had been offered. They are willing to put in the necessary time, effort and commitment to conduct thorough factual and legal preparation, and to expend the vast amount of energy often needed during counseling of this nature. Return again to the scenario where counsel believes that a plea is necessary to avoid disastrous consequences.*907 Counsel conveys the offer and supplies her opinion and the bases for that opinion, but the client declines to plead guilty. An empathetic lawyer, motivated by concerns for her client, will, rather than responding, “Great. Let's go to trial,” intervene in the client's decision and begin the process of trying to persuade. The ensuing counseling is difficult. It is often unpleasant. It is almost always unrewarding. Yet, she does it out of concern for her client.

       It is threatening to many attorneys to take on this responsibility. A lawyer who has not prepared adequately will be exposed by the client's questions and resistance. An ill-prepared lawyer is vulnerable to being called, accurately, a pawn or functionary by the client. If, on the other hand, counsel has expended the necessary effort preparing the case, the attorney can cope with the client's resistance and accusations. Even though it is cold comfort, the attorney knows that she has the client's, not the court's, interests in mind.

       It is important to emphasize that less common, but equally applicable, will be occasions when the attempt to persuade is aimed at convincing the client to reject a plea in favor of a trial. And it is important also to bear in mind that the decision is, of course, ultimately the client's. Unlike in Jones v. Barnes, [FN405] where counsel was given the final authority to decide what issues should be raised on appeal, counsel cannot override the client's decision whether to plead or not. An attorney should not, and indeed cannot, enter a plea or go to trial against a client's wishes. [FN406] Truly effective assistance, however, requires that attorneys attempt to convince clients to accept their advice. If the counseling is done with empathy, compassion and understanding, it should be the rare case where the client chooses to disagree. [FN407]

CONCLUSION

       The state of criminal defense has undergone consistent criticism, and yet the appellate courts regularly reject ineffective assistance of *908 counsel claims. Attention to the lawyer's counseling must supplement the exclusive focus on counsel's pretrial preparation and trial performance. The recognition that the overwhelming majority of the record number of inmates in American penal institutions were convicted by virtue of guilty pleas mandates this shift in emphasis. Delineating the contours of counsel's constitutional counseling obligations is a long overdue and vital task.

       With scant guidance from the courts or professional ethical standards, defense lawyers' approaches to counseling clients as to the advisability of accepting a plea offer range from neutrality to arm-twisting. Clinical legal education, seeking to incorporate the ideals of autonomy and empowering clients, embraces a client-centered model of counseling. Attorneys strive to portray and maintain neutrality so that decisions will be made by the client, free from attorney influence.

       The decision by the Second Circuit in Boria v. Keane, holding that counsel's opinion as to the desirability of accepting or rejecting a proffered plea comprises constitutionally required advice, has dramatic implications for the practice of criminal defense, as well as for conceptions of client-centered counseling. This Article argues that although the ruling in Boria was correct and will result in enhanced effectiveness of counsel, the court did not go far enough. To breathe life into the constitutional guarantee of effective assistance, the court should have required attorneys to offer their opinions, and to attempt to convince clients to accept their recommendations.

       Whether or not neutrality is a laudable goal, it is not possible to achieve. Attorneys will convey what they believe a client should do by the choices they make in what to present and how to present it. Although posited as a response to lawyers' paternalistically telling their clients what to do, neutrality, premised on notions that clients will be unable to make independent judgments once their lawyer advises a particular choice, treats clients as inherently incapable of listening to advice, weighing it and reaching an autonomous decision. In order to free clients from attorney influence, counsel withholds information–her opinion–which might be important for the client to evaluate in order to make a fully informed decision.

       Once counsel provides an opinion, it becomes incumbent upon her to explicate the bases for the opinion. Advice without the underlying justifications and rationales is of limited value to a client. In fact, when we utilize the services of professionals, we expect and demand the benefits of their training, experience, wisdom and advice. Criminal defense lawyers in particular must take on the responsibility of advising and attempting to persuade clients. Although most criminal defendants*909 are well aware of the implications of the plea decision and, obviously, are the ones who must suffer the consequences, the prevalence of mental illness, drug and alcohol use and addiction, and other factors may result in an individual not being well-suited to make a decision of this magnitude without the guidance and input of counsel. The impact of the anxiety and stress that attend decisions of this gravity, along with the pressure-packed atmosphere of criminal courts, may also serve as inhibitors to careful, thoughtful and independent decisionmaking.

       The attorney will be required to invest herself, to offer an opinion and try to persuade, but not to usurp the decision from the client. Ultimately it is, and must be, the client's choice. The attorney, however, should assume the responsibility and take on the burden of advising her client, with compassion and empathy, as to whether to accept or reject a plea offer. By supplying the bases for her opinion, she should try to persuade the client to accept her recommendation. The result will be fully counseled decisionmaking based on truly effective assistance of counsel.

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[FNa1]. Associate Professor of Clinical Law, New York University School of Law. B.A., 1978, State University of New York at Albany; J.D., 1981, Duke University School of Law. I am grateful for the insightful comments of Tony Amsterdam, Paul Chevigny, Mari Curbelo, Ronald Ellis, Monroe Freedman, David Garland, Jim Jacobs, Tom Klein, Holly Maguigan, Rob Mandclbaum, Florian Miedel, Ron Noble, Jerry Skolnick, David Stern, and Frank Upham. I thank Damaris Marrero for providing invaluable administrative assistance, and I gratefully acknowledge the financial support of the Filomen D'Agostino and Max E. Greenberg Research Fund of New York University School of Law.

[FN1]. See Williams v. Chrans, 945 F.2d 926, 931 (7th Cir. 1991) (plea entered in 1978).

[FN2]. Id. at 932.

[FN3]. Id. (emphasis added).

[FN4]. Id. at 933 (quoting Lunz v. Henderson, 533 F.2d 1322, 1327 (2d Cir. 1976)). The court went on to note that the defendant's statements during his plea that the plea was voluntary and not the result of any threats or promises were additional support for the conclusion that the plea was not coerced. See id.; see also Miles v. Dorsey, 61 F.3d 1459, 1470 (10th Cir. 1995).

[FN5]. See Trahan v. Estelle, 544 F.2d 1305, 1306 (5th Cir. 1977) (plea entered in 1969).

[FN6]. Id. at 1319 (Goldberg, J., concurring).

[FN7]. Id. (Goldberg, J., concurring). Judge Goldberg noted that in certain situations (i.e., where, as in Trahan, the defendant was young and had met with the prosecutor in the absence of counsel), it might be appropriate for the attorney to take a more active role. See id. at 1319-20.

[FN8]. The nation's jail and prison incarceration rate has nearly doubled in the last ten years. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, NCJ 162843. At the end of 1996, 1,182,690 prisoners were under federal or state jurisdiction. This represents a 5% increase from 1995, but is less than the average annual growth of 7.3% since 1990. There were an estimated 427 prison inmates per 100,000 U.S. residents, up from 292 at the end of 1990. See id.

[FN9]. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, CORRECTIONAL POPULATIONS IN THE UNITED STATES, 1995 (1996).

[FN10]. The Supreme Court has recognized plea bargaining as “an essential component of the administration of justice.” Santobello v. New York, 404 U.S. 257, 260 (1971); see also Blackledge v. Allison, 431 U.S. 63, 71 (1977) (“Whatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system.”). For proof of the prevalence of plea bargaining, see, e.g., BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 512-13 (1992); BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE BULLETIN, FELONY SENTENCES IN THE STATE COURTS 1992 (1995) (pleas account for 92% of all felony state court convictions).

[FN11]. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury ....” U.S. CONST, amend. VI.

[FN12]. One scholar defined plea bargaining as “the process by which the defendant in a criminal case relinquishes his right to go to trial in exchange for a reduction in charge and/or sentence.” MILTON HEUMANN, PLEA BARGAINING (1978).

[FN13]. “In all criminal prosecutions, the accused shall enjoy the right to ... the Assistance of Counsel for his defence.” U.S. CONST. amend. VI.

[FN14]. 372 U.S. 335 (1963) (providing that states must provide attorneys for indigent defendants accused of felonies in state courts).

[FN15]. 407 U.S. 25 (1972) (holding that a defendant could not be incarcerated in any case unless he or she had been provided counsel).

[FN16]. See, e.g., McMann v. Richardson, 397 U.S. 759, 771 (1970) (defendants are “entitled to the effective assistance of counsel ... [and] cannot be left to the mercies of incompetent counsel ....”); Powell v. Alabama, 287 U.S. 45, 71 (1932) (counsel must not be appointed “under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.”).

[FN17]. See, e.g., David L. Bazelon, The Defective Assistance of Counsel, 42 U. CIN. L. REV. 1 (1973); David L. Bazelon, The Realities of Gideon and Argersinger, 64 GEO. L.J. 811 (1976); William J. Genego, The Future of Effective Assistance of Counsel: Performance Standards and Competent Representation, 22 AM. CRIM. L. REV. 181, 201 (1984) (“[T]here are far too many defendants who are represented by inadequate counsel ....”).

[FN18]. See, e.g., AMERICAN BAR ASSOCIATION, SPECIAL COMMISSION ON CRIMINAL JUSTICE IN A FREE SOC'Y, CRIMINAL JUSTICE IN CRISIS (1988); SHELDON KRANTZ ET AL., THE RIGHT TO COUNSEL IN CRIMINAL CASES: THE MANDATE OF ARGERSINGER V. HAMLIN 1976; Richard Klein, The Emperor Gideon Has No Clothes: The Empty Promise of the Constitutional Right to Effective Assistance of Counsel, 13 HASTINGS CONST. L.Q. 625 (1986); Michael McConville & Chester L. Mirsky, Criminal Defense of the Poor in New York City, 15 N.Y.U. REV. L. & SOC. CHANGE 581 (1986-87). The number of articles concerned with indigent defense comports with the reality that most criminal defendants are represented by government-appointed counsel. See, e.g., BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, INDIGENT DEFENSE, 1996 (in 1992, about 80% of defendants charged with felonies in the 75 largest counties in the country were represented by government-supplied counsel); Paul C. Drecksel, The Crisis in Indigent Criminal Defense, 44 ARK. L. REV. 363, 367 n.21 (1991) (citing Jim Neuhard, Free Counsel, A Right Not a Charity, 14 N.Y.U. REV. L. & SOC. CHANGE 101, 109 (1986) (“In metropolitan communities, over 90% of all criminal defendants cannot afford counsel.”)).

[FN19]. See, e.g., NATIONAL LEGAL AID AND DEFENDER ASS'N, THE OTHER FACE OF JUSTICE (1973); Richard Klein, The Relationship of the Court and Defense Counsel: The Impact on Competent Representation and Proposals for Reform, 29 B.C. L. REV. 531, 532 (1988) (inadequate funding leads to too few attorneys, excessive caseloads and substandard preparation); Klein, supra note 18.

[FN20]. See, e.g., Abraham S. Blumberg, The Practice of Law as a Confidence Game: Organizational Cooptation of a Profession, 1 LAW & SOC'Y REV. 15 (1967) (analyzing the defense attorney's allegiance to the “organizational goals” and “bureaucratic priorities” of the criminal court); HEUMANN, supra note 12.

[FN21]. See, e.g., Jake Dear, Adversary Review: An Experiment in Performance Evaluation, 57 DEN. L.J. 401 (1980).

[FN22]. “Ineffective assistance of counsel is one of the most–if not the most–common appeal grounds asserted by convicted criminal defendants as appellants.” JOHN M. BURKOFF & HOPE. L, HUDSON, INEFFECTIVE ASSISTANCE OF COUNSEL 1-3 (1994) (emphasis in original). The number of reported state and federal cases in which the defendant claimed ineffective assistance on appeal increased by 250% from 1985 to 1992. See id. at v. For compilations of ineffective assistance claims, see generally id.; LARRY FASSLER, INEFFECTIVE ASSISTANCE OF COUNSEL (1993).

[FN23]. See, e.g., Dorothy Linder Maddi, Trial Advocacy Competence: The Judicial Perspective, 1978 AM. B. FOUND. RES. J. 105, 144 (1978) (a survey of trial judges found that pretrial preparation was the most common area of defense counsel incompetence).

[FN24]. See, e.g., United States v. Avery, 15 F.3d 816, 817-18 (9th Cir. 1993); Schwander v. Blackburn, 750 F.2d 494, 500 (5th Cir. 1985); Gary Goodpaster, The Adversary System, Advocacy, and Effective Assistance of Counsel in Criminal Cases, 14 N.Y.U. REV. L. & SOC. CHANGE 59, 90-91 (1986) (one of the major deficiencies of defense counsel is the failure to conduct adequate pretrial investigation); Barbara R. Levine, Preventing Defense Counsel Error–An Analysis of Some Ineffective Assistance of Counsel Claims and Their Implications for Professional Regulation, 15 U. TOL. L. REV. 1275, 1371 (1984) (the most frequent ineffective assistance claim is the failure to investigate).

[FN25]. See, e.g., Lema v. United States, 987 F.2d 48, 55 (1st Cir. 1993); Lewis v. Mazurkiewicz, 915 F.2d 106, 113 (3d Cir. 1990); Ingrassia v. Armontrout, 902 F.2d 1368, 1370 (8th Cir. 1990); Solomon v. Kemp, 735 F.2d 395, 402 (11th Cir. 1984); McNamara v. United States, 867 F. Supp. 369, 373 (E.D. Va. 1994) (ineffective assistance claims commonly involve challenges to factual research such as the interviewing of witnesses).

[FN26]. See generally Levine, supra note 24, at 1336-53.

[FN27]. See, e.g., United States v. Treff, 924 F.2d 975, 980 (10th Cir. 1991).

[FN28]. See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 368 (1993); Mason v. Scully, 16 F.3d 38, 44 (2d Cir. 1994); Levine, supra note 24, at 1357 (discussing the failure to object to inadmissible evidence, improper prosecutorial arguments or erroneous jury instructions).

[FN29]. See, e.g., Spencer v. Murray, 18 F.3d 229, 234 (4th Cir. 1994); United States v. Simpson, 974 F.2d 845, 847-48 (7th Cir. 1992); White v. Singletary, 972 F.2d 1218, 1222-23 (11th Cir. 1992).

[FN30]. See, e.g., Levine, supra note 24, at 1343.

[FN31]. For a discussion of the need to prepare thoroughly prior to engaging in plea bargaining, see generally Rodney J. Uphoff, The Criminal Defense Lawyer as Effective Negotiator: A Systemic Approach, 2 CLIN. L. REV. 73 (1995).

[FN32]. See id.

[FN33]. See, e.g., William S. Geimer, A Decade of Strickland's Tin Horn: Doctrinal and Practical Undermining of the Right to Counsel, 4 WM. & MARY BILL OF RTS. J. 91 (1995); Joseph D. Grano, The Right to Counsel: Collateral Issues Affecting Due Process, 54 MINN. L. REV. 1175, 1246 (1970) (“the problem of counsel's failure to investigate and prepare a defense is a real one”).

[FN34]. See, e.g., Martin C. Calhoun, How to Thread the Needle: Toward a Checklist-Based Standard for Evaluating Ineffective Assistance of Counsel Claims, 77 GEO. L.J. 413, 414 n.11 (1988) (finding only 4.3% of ineffectiveness claims substantiated by the circuit courts); Klein, supra note 18, at 632 (citing Brief of Amici Curiae, National Legal Aid and Defender Association, The Association of Trial Lawyers of America and the American Civil Liberties Union at 22, United States v. Cronic, 466 U.S. 648 (1984) (of 4000 federal and state reported appellate decisions from 1970 to 1983, only 3.9% of ineffective assistance claims were successful)).

[FN35]. See, e.g., Cronic, 466 U.S. at 663-75 (not ineffective assistance when defense counsel, who had no previous jury trial and criminal law experience, had 25 days to prepare a case that took the government four and one-half years to put together); United States v. Lewis, 786 F.2d 1278, 1281 (5th Cir. 1986) (not ineffective assistance even if no prior experience in criminal advocacy); Avery v. Procunier, 750 F.2d 444, 447 (5th Cir. 1985) (not ineffective counsel even though appointed on the morning of trial).

[FN36]. See, e.g., Burnett v. Collins, 982 F.2d 922, 930 (5th Cir. 1993) (even though defendant alleged that counsel had been intoxicated during the trial and counsel entered an alcohol treatment program after the trial, there were no specific instances where counsel's performance was deficient); Fowler v. Parratt, 682 F.2d 746, 750 (8th Cir. 1982) (although defense counsel admitted being an alcoholic and suffering from blackouts during the trial, there was no evidence that it affected his representation of the defendant); Hernandez v. Wainwright, 634 F. Supp. 241, 245 (S.D. Fla. 1986) (“Even if this court were to credit ... Petitioner and his wife and determine that the mere presence of alcohol on [counsel's] breath signified inebriation, Petitioner has not shown how this condition caused [counsel] to render deficient legal representation or how this state resulted in prejudice to Petitioner's case.”); People v. Garrison, 765 P.2d 419, 440 (Cal. 1989) (en banc) (it was undisputed that counsel was an alcoholic and consumed large amounts of alcohol each day of the trial, but defendant failed to prove that counsel's performance was deficient).

[FN37]. See, e.g., Berry v. King, 765 F.2d 451, 454 (5th Cir. 1985) (“[T]he fact that an attorney used drugs is not, in and of itself, relevant to an ineffective assistance claim. The critical inquiry is whether ... counsel's performance was deficient and whether that deficiency prejudiced the defendant.” (emphasis in original)); Young v. Zant, 727 F.2d 1489, 1492-93 (11th Cir. 1984) (even though counsel admitted that he had a drug problem and was convicted for marijuana possession shortly after the trial, there was no showing of ineffective assistance); State v. Coates, 786 P.2d 1182, 1187 (Mont. 1990) (“[A]bsent any specific errors or conduct identified in the trial that affected the trial's outcome, [counsel's] cocaine abuse is irrelevant to the issue of ineffective assistance of counsel.”).

[FN38]. See, e.g., McDougall v. Dixon, 921 F.2d 518, 534 (4th Cir. 1990) (although counsel was on medication and receiving treatment for depression and severe migraines, and was hospitalized several times during the trial, the defendant did not show that this affected counsel's ability to render adequate legal assistance); Smith v. Ylst, 826 F.2d 872, 876 (9th Cir. 1987) (even though there was evidence of counsel's mental instability, defendant's claim of ineffective assistance was properly denied without a hearing); Buckelew v. United States, 575 F.2d 515, 520-21 (5th Cir. 1978) (no adequate showing of specific prejudice resulting from counsel's alleged infirmities).

[FN39]. See, e.g., United States v. Petersen, 777 F.2d 482, 484 (9th Cir. 1985) (allegation that counsel was sleeping during trial was not sufficiently made out); McFarland v. Texas, 928 S.W.2d 482, 505 n.20 (Tex. Crim. App. 1996) (not ineffective assistance even though counsel slept though parts of the trial; the court opined that perhaps co-counsel let the attorney sleep as a strategic choice in order to gain the jurors' sympathy for the defendant); Ex parte Burdine, 901 S.W.2d 456, 456-57 (Tex. Crim. App. 1995) (even though three jurors testified that they observed the attorney dozing and the trial judge found that counsel had slept during the trial, the application for a writ of habeas corpus was denied). But see Javor v. United States, 724 F.2d 831, 833-34 (9th Cir. 1984) (court found ineffective assistance where counsel slept through substantial parts of the trial).

[FN40]. 544 F.2d at 1316 (Goldberg, J., concurring); see also Alan W. Clarke, Procedural Labyrinths and the Injustice of Death: A Critique of Death Penalty Habeas Corpus, 29 U. RICH. L. REV. 1327, 1362 (1995) (to succeed on ineffective assistance claim, the defendant must have had “truly abysmal” lawyering).

[FN41]. 99 F.3d 492 (2d Cir. 1996).

[FN42]. By “client-centered” counseling, I refer to the model proposed originally in DAVID A. BINDER & SUSAN C. PRICE, LEGAL INTERVIEWING AND COUNSELING: A CLIENT-CENTERED APPROACH (1977). Although others have delineated aspects of client-centeredness, see, e.g., THOMAS L. SHAFFER, LEGAL INTERVIEWING AND COUNSELING IN A NUTSHELL (1976), the Binder and Price text has been the most influential within clinical legal education. See, e.g., Robert D. Dinerstein, Client-Centered Counseling: Reappraisal and Refinement, 32 ARIZ. L. REV. 501, 504 (1990). For an analysis of client-centered counseling, see infra notes 218-48 and accompanying text.

[FN43]. See supra notes 13-16 and accompanying text.

[FN44]. Post-conviction hearing on defense motion to vacate the judgment of conviction on the ground, among others, of ineffective assistance of counsel. February 26-28, 1992 (transcript on file with author). Counsel's approach is consistent with a traditional view of client-centered counseling. See discussion infra notes 218-48 and accompanying text.

[FN45]. Id. at 15, 18, 27-29, 42-44.

[FN46]. Id. at 10.

[FN47]. See Boria, 99 F.3d at 497.

[FN48]. Id. at 498 (quoting Model Code of Professional Responsibility EC 7-7 (1992)).

[FN49]. See supra text accompanying notes 35-39.

[FN50]. Boria, 99 F.3d at 497.

[FN51]. See, e.g., Dinerstein, supra note 42, at 512 (“The core argument supporting client decisionmaking is that it enhances the client's individual autonomy.”); John K. Morris, Power and Responsibility Among Lawyers and Clients: Comment on Ellmann's Lawyers and Clients, 34 UCLA L. REV. 781, 782, 809 (1987).

[FN52]. See Dinerstein, supra note 42, at 507 (“Client-centered counseling may be defined as a legal counseling process designed to foster client-decisionmaking.”).

[FN53]. BINDER & PRICE, supra note 42, at 166.

[FN54]. See id. at 187-88, 198-200.

[FN55]. 287 U.S. 45 (1932).

[FN56]. Id. at 71.

[FN57]. 397 U.S. 759 (1970).

[FN58]. Id. at 771.

[FN59]. See, e.g., Bottiglio v. United States, 431 F.2d 930, 931 (1st Cir. 1970) (per curiam); Cofield v. United States, 263 F.2d 686, 689 (9th Cir.), rev'd per curiam on other grounds, 360 U.S. 472 (1959); United States v. Wight, 176 F.2d 376, 379 (2d Cir. 1949) (“A lack of effective assistance of counsel must be of such a kind as to shock the conscience of the Court and make the proceedings a farce and mockery of justice.”); Diggs v. Welch, 148 F.2d 667, 670 (D.C. Cir. 1945).

[FN60]. See, e.g., Cooper v. Fitzharris, 586 F.2d 1325, 1328 (9th Cir. 1978) (en banc); United States v. Bosch, 584 F.2d 1113, 1121 (1st Cir. 1978); United States v. Easter, 539 F.2d 663, 666 (8th Cir. 1976) (“[T]rial counsel fails to render effective assistance when he [sic] does not exercise the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances.”).

[FN61]. Trapnell v. United States, 725 F.2d 149, 153 (2d Cir. 1983) (“[T]he time has come to declare that ‘effective’ assistance means ‘reasonably competent assistance,’ which we regard as shorthand for the standard that the quality of defense counsel's representation should be within the range of competence reasonably expected of attorneys in criminal cases.”).

[FN62]. 466 U.S. 668 (1984).

[FN63]. See, e.g., ANTHONY PARTRIDGE & GORDON BERMANT, THE QUALITY OF ADVOCACY IN THE FEDERAL COURTS (1978); Maddi, supra note 23.

[FN64]. See supra notes 17-18.

[FN65]. The Court held that “[w]hen a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness. More specific guidelines are not appropriate. The Sixth Amendment refers simply to ‘counsel,’ not specifying particular requirements of effective assistance.” Strickland, 466 U.S. at 687-88. Justice Brennan wrote, “With respect to the performance standard, I agree with the Court's conclusion that a ‘particular set of detailed rules for counsel's conduct’ would be inappropriate.” Id. at 703 (Brennan, J., concurring in part and dissenting in part). Scholars have expressed similar sentiments. See, e.g., Vivian Berger, The Supreme Court and Defense Counsel: Old Roads, New Paths–A Dead End?, 86 COLUM. L. REV. 9, 86 (1986) (“I believe that at this stage of development of the law on ineffective assistance, the difficulty of articulating a comprehensive list of duties justifies the Court's reluctance to constitutionalize any specific directives to counsel.”). Justice Marshall, on the other hand, criticized the majority's refusal to delineate specific standards and praised the Eleventh Circuit for its “sound attempt to develop particularized standards designed to ensure that all defendants receive effective legal assistance.” Strickland, 466 U.S. at 709 (Marshall, J., dissenting).

[FN66]. Strickland, 466 U.S. at 688.

[FN67]. Id. at 694.

[FN68]. See supra notes 22-32 and accompanying text.

[FN69]. See supra notes 10-12.

[FN70]. See, e.g., Albert W. Alschuler, Personal Failure, Institutional Failure, and the Sixth Amendment, 14 N.Y.U. REV. L. & SOC. CHANGE 149, 149 (1986) (“[A] plea negotiation system insulates attorneys from review and often makes it impossible to determine whether inadequate representation has occurred....”); Berger, supra note 65, at 65 (“[O]ften the sins of counsel are buried in guilty pleas....”).

[FN71]. See, e.g., Goodpaster, supra note 24, at 81 (“[T]he ineffective assistance problem is much harder to reach in guilty plea cases because there is no evidentiary record from which to assess counsel's alleged failings....”).

[FN72]. The record on these claims will likely have been developed at a hearing on post-verdict motions.

[FN73]. See, e.g., Herring v. Estelle, 491 F.2d 125, 128 (5th Cir. 1974) (“Reasonably effective assistance is an casier standard to meet in the context of a guilty plea than in a trial, but counsel still must render competent service.”).

[FN74]. See North Carolina v. Alford, 400 U.S. 25, 31 (1970) (“The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.”).

[FN75]. 474 U.S. 52 (1985).

[FN76]. Id. at 57 (“Although our decision in Strickland v. Washington dealt with a claim of ineffective assistance of counsel in a capital sentencing proceeding, and was premised in part on the similarity between such a proceeding and the usual criminal trial, the same two-part standard seems to us applicable to ineffective assistance claims arising out of the plea process.”).

[FN77]. Id. at 58. The Court's stated purpose for requiring a showing of prejudice was to promote the finality of guilty pleas. See id.

[FN78]. Jones v. Barnes, 463 U.S. 745, 751 (1983) (the accused has the “ultimate authority” to decide whether to plead guilty, waive a jury, testify in his or her own behalf or take an appeal).

[FN79]. See supra notes 74-76.

[FN80]. See Strickland, 466 U.S. at 688.

[FN81]. See id. at 694; Hill, 474 U.S. at 59.

[FN82]. 461 F.2d 530 (5th Cir. 1972).

[FN83]. Id. at 532; see also O'Tuel v. Osborne, 706 F.2d 498, 500 (4th Cir. 1983); Strader v. Garrison, 611 F.2d 61, 63 (4th Cir. 1979); Hammond v. United States, 528 F.2d 15, 18 (4th Cir. 1975) (defense counsel's erroneous calculation of the maximum allowable sentence held to be ineffective assistance rendering the plea involuntary).

[FN84]. 506 N.W.2d 547 (Mich. Ct. App. 1993).

[FN85]. Id. at 552.

[FN86]. Id. at 555.

[FN87]. See, e.g., Tollett v. Henderson, 411 U.S. 258, 266 (1973) (the issue is whether counsel's assistance was “within the range of competence demanded of attorneys in criminal cases”).

[FN88]. 645 A.2d 734 (N.J. 1994).

[FN89]. Id. at 744.

[FN90]. See id. at 745; see also Little v. Allsbrook, 731 F.2d 238, 241 (4th Cir. 1984) (“An attorney's ‘bad guess' as to sentencing does not justify the withdrawal of a guilty plea and is no reason to invalidate a plea.”); United States v. Hollis, 718 F.2d 277, 280-81 (8th Cir. 1983).

[FN91]. The court ruled that the erroneous prediction did not render the plea involuntary or unknowing, nor did it amount to the ineffective assistance of counsel. DiFrisco, 645 A.2d at 745; see also Chichakly v. United States, 926 F.2d 624, 630-31 (7th Cir. 1991) (quoting Stout v. United States, 508 F.2d 951, 953 (6th Cir. 1975) (“A plea is not rendered involuntary merely because a prediction that a guilty plea will result in a light sentence does not come true.”)). The court in Chichakly noted further that a “mere inaccurate prediction, standing alone...does not constitute ineffective assistance.” 926 F.2d at 630 n.11; see also United States v. Arvanitis, 902 F.2d 489, 494 (7th Cir. 1990); United States v. Garcia, 909 F.2d 1346, 1348-49 (9th Cir. 1990); People v. Jones, 579 N.E.2d 829, 840-41 (Ill. 1991); cf. United States v. Wilson, 922 F.2d 1336, 1340 (7th Cir. 1991) (“There are two strands of argument here–a due process argument, that the pleas were involuntary, and also a sixth amendment argument, that [counsel] provided ineffective assistance. These arguments are doctrinally distinct. Effective assistance from counsel ‘within the range of competence demanded of attorneys in criminal cases,’ will usually guarantee a knowing, intelligent and voluntary plea–but not always,” (internal citations omitted)); Berger, supra note 65, at 111 (“Regardless whether the claim is couched in terms of involuntariness or ineffectiveness, the prisoner is making the same complaint–that grossly deficient representation induced him to enter a plea of guilty.”).

[FN92]. See, e.g., Steven Zeidman, Sacrificial Lambs or the Chosen Few?: The Impact of Student Defenders on the Rights of the Accused, 62 BROOK. L. REV. 853, 908 n.224 (1996).

[FN93]. 800 F.2d 861 (9th Cir. 1986).

[FN94]. See id. at 863.

[FN95]. Id. (emphasis added).

[FN96]. For discussion of the relationship between ineffectiveness and involuntariness, see supra note 91.

[FN97]. See Iaea, 800 F.2d at 865.

[FN98]. Id.

[FN99]. One scholar has argued that counsel should not be permitted to withdraw or threaten to withdraw from representing a client when the client declines to accept the attorney's advice. See Albert W. Alschuler, The Defense Attorney's Role in Plea Bargaining, 84 YALE L.J. 1179, 1310 (1975) (“A defense attorney should neither withdraw nor threaten to withdraw from a case because his client has refused to enter the plea that the attorney has recommended. Professional codes should, in my view, be revised to make this action grounds for professional discipline.”).

[FN100]. 821 F.2d 1099 (5th Cir. 1987).

[FN101]. Id. at 1101.

[FN102]. Id.

[FN103]. Id. at 1102.

[FN104]. Id.

[FN105]. 945 F.2d 926 (7th Cir. 1991).

[FN106]. Id. at 932; see supra note 3 and accompanying text.

[FN107]. 847 F.2d 745 (11th Cir. 1988).

[FN108]. Williams, 945 F.2d at 933 (quoting Lo Conte, 847 F.2d at 753).

[FN109]. Id.

[FN110]. Id. (quoting Lunz v. Henderson, 533 F.2d 1322, 1327 (2d Cir. 1976)). The court went on to note that the defendant's statements during his plea that the plea was voluntary and not the result of any threats or promises, were additional support for the conclusion that the plea was not coerced. See id.; see also Miles v. Dorscy, 61 F.3d 1459, 1470 (10th Cir. 1995).

[FN111]. 922 F.2d 1336 (7th Cir. 1991).

[FN112]. Id. at 1341; see also Alschuler, supra note 99, at 1309 (“[T]he line between advice and coercion seems virtually non-existent in the guilty-plea system.”).

[FN113]. See infra note 200.

[FN114]. See infra notes 228-30.

[FN115]. For a discussion of other possible rationales for attorney neutrality, see infra notes 396-407 and accompanying text.

[FN116]. 476 F.2d 213 (5th Cir. 1973).

[FN117]. Id. at 224.

[FN118]. 544 F.2d 1305 (5th Cir. 1977).

[FN119]. Id. at 1319 (Goldberg, J., concurring).

[FN120]. Id.

[FN121]. Id.

[FN122]. Id. at 1320.

[FN123]. 584 F.2d 687 (5th Cir. 1978).

[FN124]. See id. at 690.

[FN125]. 498 N.W.2d 430 (Mich. 1993).

[FN126]. Id. at 430 (Cavanagh, C.J., dissenting).

[FN127]. 538 N.W.2d 60 (Mich. Ct. App. 1995).

[FN128]. Id. at 62.

[FN129]. Id.

[FN130]. Id.

[FN131]. Id.

[FN132]. The dissent took a more expansive view of the role of defense counsel and agreed with the trial court that “the essence of an attorney's function ... is to give advice.” Corteway, 538 N.W.2d at 65 (Hood, P.J., dissenting).

[FN133]. See, e.g., MALCOLM F. FEELEY, THE PROCESS IS THE PUNISHMENT–HANDLING CASES IN A LOWER CRIMINAL COURTTTTTT 127 (1979); Thomas Hagel, Toward a Uniform Statutory Standard for Effective Assistance of Counsel: A Right in Search of Definition After Strickland, 17 LOY. L.J. 203, 223 & n.144 (1986).

[FN134]. See supra notes 22-29.

[FN135]. When a defendant pleads guilty, he waives the constitutional right to a jury trial, the right to confront his accusers and the privilege against self-incrimination. See Boykin v. Alabama, 395 U.S. 238, 242-43 (1969). The courts must ensure that guilty pleas are voluntary, knowing and intelligent. See, e.g., McCarthy v. United States, 394 U.S. 459, 467 (1969).

[FN136]. See Hill, 474 U.S. at 58-59.

[FN137]. See, e.g., State v. Kraus, 397 N.W.2d 671, 674 (Iowa 1986) (“There is a vast difference between what happens to a defendant when he pleads guilty as opposed to what occurs when a plea agreement is rejected. The rejection of a plea agreement, in most instances, will result in the defendant going to trial with all of the concomitant constitutional safeguards that are part and parcel of our judicial process. The defendant who pleads guilty, on the other hand, waives many of these protections ....”) (quoting Johnson v. Duckworth, 793 F.2d 898, 900 (7th Cir. 1986)); Commonwealth v. Thomas, 350 A.2d 847, 850 n.3 (Pa. 1976) (“It is particularly significant that counsel is not here accused of persuading appellant to waive any of his rights but rather suggested that he avail himself of all the protection provided under our system of jurisprudence. It would be in only the most unusual cases where such advice could be deemed a basis for an ineffective assistance of counsel claim.”).

[FN138]. 19 F.3d 226 (5th Cir. 1994).

[FN139]. Id. at 228-29; see also United States v. Holcomb, 943 F. Supp. 13, 17 (D.D.C. 1996) (“[T]here is little case law on the consequences of a defendant's rejection of a plea offer in favor of going to trial, with a subsequent attempt to recover the benefit of the unaccepted plea bargain. Most claims of ineffective assistance by counsel of this type result from guilty pleas that leave defendants dissatisfied with their sentences.”); McClenithan v. Dugger, 767 F. Supp. 257, 258 (M.D. Fla. 1991) (“While there is considerable case law addressing ineffective assistance of counsel in conjunction with defendant's acceptance of a plea bargain, case law concerning this issue in conjunction with defendant's rejection of a plea bargain is sparse.”); Kraus, 397 N.W.2d at 673-74 (observing that cases of attorney misadvice during plea bargaining usually involve plea cases, and that the court had not yet decided a case where the misadvice led to a not guilty plea); Judge v. State, 471 S.E.2d 146, 148 (S.C. 1996) (noting that the question of a defendant's Sixth Amendment rights when he asserts that ineffective assistance resulted in the rejection of a plea had not yet been resolved by the South Carolina Supreme Court or the Supreme Court of the United States).

[FN140]. 19 F.3d at 230.

[FN141]. 930 F. Supp. 189 (E.D. Pa. 1996).

[FN142]. Id. at 192.

[FN143]. 397 N.W.2d 671, 674 (Iowa 1986).

[FN144]. Id. at 674; see also Young v. State, 608 So. 2d 111, 112 (Fla. Dist. Ct. App. 1992) (a defendant who pleads guilty due to misadvice gets a new trial whereas a defendant who went to trial due to misadvice has “nothing to lose”).

[FN145]. 814 F. Supp. 760 (E.D. Wis. 1993).

[FN146]. Id. at 765.

[FN147]. United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992).

[FN148]. In re Alvernaz, 2 Cal. 4th 924, 925 (Cal. 1992); see also Toro v. Fairman, 940 F.2d 1065, 1068 (7th Cir. 1991); Beckham v. Wainwright, 639 F.2d 262, 265-66 (5th Cir. 1981); Turner v. State, 664 F. Supp. 1113, 1120 (M.D. Tenn. 1987) (“To accept or to reject a plea offer presents a binary choice at a fork in the road; providing constitutional protection against an incompetent shove in one direction, but not against an equally incompetent shove in the other, may produce unwanted skewing of the results.”); Lyles v. State, 382 N.E.2d 991, 993 (Ind. Ct. App. 1978); People v. Carter, 520 N.W.2d 133, 134 n.1 (Levin, J., dissenting) (Mich. 1994).

[FN149]. 728 F. Supp. 1241 (W.D.N.C. 1990).

[FN150]. Id. at 1251; see also Turner v. Tennessee, 858 F.2d 1201, 1205 (6th Cir. 1988) (“[A]n incompetently counseled decision to go to trial appears to fall within the range of protection appropriately provided by the Sixth Amendment.”); Johnson, 793 F.2d at 902; Caruso v. Zelinsky, 689 F.2d 435, 438 (3d Cir. 1982); United States v. Jerome, 933 F. Supp. 989, 994 (D. Nev. 1996) (incompetently counseled decision to plead not guilty and to proceed to trial does fall within the range of protection of the Sixth Amendment right to effective assistance).

[FN151]. 969 F.2d 39 (3d Cir. 1992).

[FN152]. Id. at 45.

[FN153]. See id. at 44; see also Beckham, 639 F.2d at 267. Interestingly, the issue of the appropriate remedy remains. Most courts attempt to adjust the judgment and sentence in a manner consistent with the offer, or order a new trial with a direction that plea bargaining begin anew. See, e.g., Alvernaz, 2 Cal. 4th at 926.

[FN154]. 466 U.S. 668 (1984).

[FN155]. See id. at 687.

[FN156]. See id. at 694.

[FN157]. See, e.g., United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994); United States v. Rodriguez, 929 F.2d 747, 752 (1st Cir. 1991); Johnson, 793 F.2d at 902; Caruso, 689 F.2d at 438; Beckham, 639 F.2d at 266; United States v. Barber, 808 F. Supp. 361, 378 (D.N.J. 1992); Barentine, 728 F. Supp. at 1243; Lloyd v. State, 373 S.E.2d 1, 2 (Ga. 1988); Lyles, 382 N.E.2d at 993; State v. James, 739 P.2d 1161, 1166 (Wash. Ct. App. 1987) (may constitute ineffective assistance).

[FN158]. Caruso, 689 F.2d at 438.

[FN159]. 969 F.2d 39 (3d Cir. 1992).

[FN160]. Id. at 43.

[FN161]. Id.

[FN162]. Id.

[FN163]. Id.

[FN164]. 639 F.2d 262 (5th Cir. 1981).

[FN165]. Id. at 267 (citing Tollett, 411 U.S. at 266 (quoting McMann, 397 U.S. at 771)).

[FN166]. For cases that address inaccurate information regarding sentencing, see, e.g., In re Alvernaz, 831 F. Supp. 790, 793, 799 (S.D. Cal. 1993) (turned down five years, went to trial and received an indeterminate life sentence); McClenithan, 767 F. Supp. at 258-59 (offered fifteen years with a minimum of five, went to trial and got thirty with a minimum of fifteen); Barentine, 728 F. Supp. at 1244) (turned down offer of five years, went to trial, was convicted and sentenced to thirty-five years). For examples of cases that discuss erroneous advice in other contexts, see, e.g., Kraus, 397 N.W.2d at 672 (misadvice as to whether the prosecution had to prove specific intent); Carter, 520 N.W.2d at 134 (Levin, J., dissenting) (misinformation as to whether the defendant could be convicted as an aider and abettor).

[FN167]. 930 F. Supp. 189 (D. Pa. 1996).

[FN168]. Id. at 191.

[FN169]. Id. at 192.

[FN170]. 814 F. Supp. 760 (E.D. Wis. 1993).

[FN171]. Id. at 761.

[FN172]. See id. at 764; see also Williams v. State, 605 A.2d 103, 109 (Md. 1992).

[FN173]. 2 Cal. 4th 924 (Cal. 1992).

[FN174]. Id. at 937.

[FN175]. See, e.g., Judge, 471 S.E.2d at 150 (observing that advice to reject a plea is not unreasonable simply because, in hindsight, the advice was wrong or the tactics backfired, and that tactical or strategic choices will amount to ineffective assistance only if they are so patently unreasonable that no competent attorney would have so chosen).

[FN176]. Although it is one thing to urge the client to reject a plea bargain, and quite another to urge the client to go to trial, the result is the same–if the advice is followed, the case will proceed to trial.

[FN177]. 858 F.2d 1201 (6th Cir. 1988).

[FN178]. Turner, 664 F. Supp. at 1121.

[FN179]. Id.

[FN180]. Id. (ellipses in original).

[FN181]. Id. at 1115 n.6.

[FN182]. Id. at 1117 n.11. At the hearing on the defendant's motion for a new trial, there was evidence that counsel had “an inflated estimate of his own abilities, an unrealistic estimate of the probabilities of outcome at trial, and a casual attitude toward trial preparation.” Id. at 1115 n.6. There was also testimony that he had indulged in cocaine and patronized prostitutes during the weekend prior to trial. See id.

[FN183]. Commonwealth v. Boyd, 688 A.2d 1172, 1177 (Pa. 1997) (Castille, J., concurring in part and dissenting in part); see also Faubion, 19 F.3d at 228-29; Rodriguez, 929 F.2d at 752-53 (counsel's advice to go to trial was tactical matter and tactical errors, even egregious ones, do not provide basis for postconviction relief).

[FN184]. 929 F.2d 747 (1st Cir. 1991).

[FN185]. Id. at 748.

[FN186]. Id. at 753.

[FN187]. One exception is Larson v. State, 766 P.2d 261, 262 (Nev. 1988). In Larson, defense counsel advised his client to go to trial because he thought a trial would receive national attention. Not surprisingly, the court found his conduct to fall below an objective standard of reasonableness. The court contrasted counsel's actions with those where an attorney makes reasoned plea recommendation which in hindsight prove unwise, or relies on ultimately unsuccessful tactics.

[FN188]. 540 N.E.2d 941 (Ill. App. Ct. 1989).

[FN189]. 471 S.E.2d 146 (S.C. 1996).

[FN190]. Testimony at the postconviction hearing revealed the following counseling between attorney and client: “[Lawyer] told Mr. Judge what the offer was [voluntary manslaughter with a seven-year cap]. At that point Mr. Judge basically asked [lawyer], ‘What should I do? What do you think I should do?’ [Lawyer] basically said, ‘Well, I would reject it, I think we ought to reject it and go to trial.’ At that point Mr. Judge said something to the effect, ‘Whatever you say ... that is what I will do.’ We then went to the trial.” Judge, 471 S.E.2d at 151 n.2.

[FN191]. 350 A.2d 847 (Pa. 1976).

[FN192]. See id. at 850 n.3.

[FN193]. 688 A.2d 1172 (Pa. 1997).

[FN194]. Id. at 1175.

[FN195]. Id.

[FN196]. Strickland, 466 U.S. at 689.

[FN197]. See id. at 689-90. In United States v. Rodriguez, the court ruled that advice to go to trial was tactical in nature, and that tactical errors, even if “egregious,” should not sustain an ineffective assistance claim. 929 F.2d at 753.

[FN198]. Jerome, 933 F. Supp. at 994 (quoting Adams v. Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983)); see also Washington v. Watkins, 655 F.2d 1346, 1355 (5th Cir. 1981); Judge, 471 S.E.2d at 150. The “patently unreasonable” standard ensures that lawyers who recommend that a client reject a plea in favor of a trial will rarely be found to be ineffective. As a result, attorneys who previously were disinclined to make such a recommendation for fear of appellate scrutiny should be more likely to advise a client to go to trial, and attorneys who enjoy trials and often urge clients to turn down plea offers will no doubt feel fortified.

[FN199]. See discussion of client-centered counseling infra text accompanying notes 219-49.

[FN200]. See, e.g., JONATHAN D. CASPER, AMERICAN CRIMINAL JUSTICE–THE DEFENDANT'S PERSPECTIVE (1972); Alan F. Arcuri, Lawyers, Judges, and Plea Bargaining: Some New Data on Inmates' Views, 4 INT'L J. CRIMINOLOGY & PENOLOGY 177 (1976); Glen Wilkerson, Public Defenders as Their Clients See Them, 1 AM. J. CRIM. L, 141 (1972). For a discussion of other justifications for neutrality, see infra notes 397-404 and accompanying text.

[FN201]. 943 F. Supp. 13 (D.D.C. 1996).

[FN202]. See id. at 15.

[FN203]. 933 F. Supp. 989 (D. Nev. 1996).

[FN204]. Id. at 995.

[FN205]. Id. at 994.

[FN206]. 947 F.2d 1106 (4th Cir. 1991).

[FN207]. Id. at 1111 (quoting Strickland, 466 U.S. at 690).

[FN208]. 385 A.2d 521 (Pa. 1978).

[FN209]. Id. at 523. Counsel testified that “had this case been presented to me two months after it was presented I would not have walked into Mr. Napper and offhandedly told him the plea. I would have walked into Mr. Napper .... I would have walked in and told Mr. Napper that it was to his best interest to plea, and Mr. Napper, I would assume, would have pled.” Id. at 523-24.

[FN210]. See id. at 524.

[FN211]. 618 A.2d 1290 (Vt. 1992).

[FN212]. See id. at 1291.

[FN213]. Id.

[FN214]. See id. at 1291-92; Strickland, 466 U.S. at 687-88.

[FN215]. See Bristol, 618 A.2d at 1292.

[FN216]. See e.g., Turner, 858 F.2d at 1205-07.

[FN217]. See e.g., Kraus, 397 N.W.2d at 673.

[FN218]. See e.g., Dinerstein, supra note 42, at 506; Mark Spiegel, The Case of Mrs. Jones Revisited: Paternalism and Autonomy in Lawyer-Client Counseling, 1997 B.Y.U. L. REV. 307 (“As with most professional-cliem relations, it was simply assumed that the power to make significant decisions was delegated to the professional.”).

[FN219]. See Dinerstein, supra note 42, at 504.

[FN220]. See, e.g., Ann Shalleck, Constructions of the Client Within Legal Education, 45 STAN. L. REV. 1731, 1742 (1993).

[FN221]. See, e.g., Dinerstein, supra note 42, at 518 (“The origins of client-centered lawyering are inextricably bound up with the development of ‘modern’ clinical legal education itself.”). For a discussion of the history of clinical legal education, see George S. Grossman, Clinical Legal Education: History and Diagnosis, 26 J. LEGAL EDUC. 162 (1974).

[FN222]. See, e.g., David Barnhizer, The University Ideal and Clinical Legal Education, 35 N.Y.L. SCH. L. REV. 87 (1990) (observing that one of the themes of clinical education was the provision of legal services to disadvantaged groups).

[FN223]. See id.

[FN224]. See, e.g., Gary Bellow, Turning Solutions Into Problems: The Legal Aid Experience, 34 NLADA BRIEFCASE 106 (Aug. 1977); Robert D. Dinerstein, Clinical Texts and Contexts, 39 UCIA L. REV. 697, 707 (1992) (“[C]lient-centeredness has been one of the key concepts in clinical education.”).

[FN225]. See Anthony V. Alfieri, The Polities of Clinical Knowledge, 35 N.Y.L. SCH. L. REV. 7, 15 n.49 (1990) (“In 1989 and 1990, the West Publishing Co. estimated adoption of Binder and Price's Legal Interviewing and Counseling by over 100 law schools and colleges in the United States.”). Clinical law teachers, in particular, rely on the Binder & Price text. See Dinerstein, supra note 42, at 504; Dinerstein, supra note 224, at 700 (Binder & Price's LEGAL INTERVIEWING AND COUNSELING; A CLIENT-CENTERED APPROACH had a tremendous influence on clinical law teachers and their students).

[FN226]. BINDER & PRICE, supra note 42.

[FN227]. See, e.g., Dinerstein, supra note 42, at 507; Stephen Ellmann, Lawyers and Clients, 34 UCLA L. REV. 717, 720 (1987) (“Broadly we can say that client-centered practice takes the principle of client decisionmaking seriously, and derives from this premise the prescription that a central responsibility of the lawyer is to enable the client to exercise his right to choose.”). Binder & Price, however, do recognize that in limited circumstances there may be exceptions to client-centered decisionmaking. See BINDER & PRICE, supra note 42, at 153-55, 192-210.

[FN228]. See BINDER & PRICE, supra note 42, at 166.

[FN229]. In certain carefully circumscribed situations, counsel may accede to the client's request and provide an opinion. Id. at 186-87, 197-200.

[FN230]. See Dinerstein, supra note 42, at 512; Marcy Strauss, Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy, 65 N.C. L. REV. 315, 340 (1987) (“[A]utonomy establishes a presumption in favor of client decisionmaking over all aspects of the lawsuit.”).

[FN231]. See, e.g., BINDER & PRICE, supra note 42, at 160 n.2; Mark Spiegel. Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128 U. PA. L. REV. 41 (1979); Strauss, supra note 230.

[FN232]. See, e.g., Dinerstein, supra note 42, at 530.

[FN233]. BINDER & PRICE, supra note 42, at 147-48.

[FN234]. See, e.g., Dinerstein, supra note 42, at 534-38; Judith L. Maute, Allocation of Decisionmaking Authority Under the Model Rules of Professional Conduct, 17 U.C. DAVIS L. REV. 1049, 1052-56 (1984); Mark Spiegel, The New Model Rules of Professional Conduct: Lawyer-Client Decision Making and the Role of Rules in Structuring the Lawyer-Client Dialogue, 1980 AM. B. FOUND. RES. J. 1003, 1004 (observing that the Model Code “is at best ambiguous in resolving this question of allocation of authority.”); Strauss, supra note 230, at 319-20.

[FN235]. See, e.g., Ellmann, supra note 227, at 752-53 (“[T]he process of client-centered counseling affects, and in important respects manipulates its clients, both by denying them ready access to advice they might desire, and by engaging them in a decisionmaking process with the potential to shape their thinking subtly but profoundly.”).

[FN236]. DAVID BINDER ET AL., LAWYERS AS COUNSELORS: A CLIENT-CENTERED APPROACH (1991).

[FN237]. Id. at 288 (lawyer should “strive to maintain an appearance of impartiality throughout the counseling process.”). The authors do, however, recognize that some scholars believe that maintaining an appearance of neutrality may be impossible. See id. at 288 n.3.

[FN238]. Id. at 23, 261 (“[C]lient autonomy is of paramount importance.”).

[FN239]. See id. at 279-80, 347-50. The authors now reject their own “radical” view which required attorneys to reject requests for advice in order to avoid unduly influencing the client's decisions. They now believe that the “radical” view of client-centered counseling “demeans clients' ability to make independent judgments; deprives clients of the opportunity to get advice from a person who has professional expertise and emotional distance from a problem; and may well defeat the expectations of most clients.” Id. at 279.

[FN240]. In fact, if pressed by the client, the lawyer may even provide an opinion based on personal values. See id. at 280 n.49.

[FN241]. See BINDER, supra note 236, at 353-54.

[FN242]. See id. at 281-84, 356-59.

[FN243]. See e.g., Dinerstein, supra note 224, at 710-11 (arguing that “the authors may have lost sight of their original insight that opinions may tend to silence and dominate vulnerable clients,” and that by “removing the strong constraints against lawyers expressing their opinions, the authors provide lawyers bent on providing those opinions ample support for doing so.”). The Binder, Bergman & Price model of client-centered counseling has been criticized on other grounds as well. See, e.g., Alfieri, supra note 225; Dinerstein, supra note 224, at 719-28 (discussing the failure of Binder, Bergman & Price to address contextual concerns such as the nature of the lawyer-client relationship with respect to the role of race, class and gender; the importance of client stories; and problems of professional responsibility); Ellmann, supra note 227, at 753-78; Shalleck, supra note 220, at 1743-48.

[FN244]. See supra notes 221-24.

[FN245]. See Dinerstein, supra note 224, at 699.

[FN246]. See supra note 18.

[FN247]. See supra notes 13-16.

[FN248]. By “in-house” clinic, I refer to a clinic in which students, under faculty supervision, represent clients. For descriptions of these types of clinics, see, e.g., J. Michael Norwood, Requiring a Live Client, In-House Clinical Course: A Report on the University of New Mexico Law School Experience, 19 N.M. L. REV. 265 (1989).

[FN249]. See Robert D. Dinerstein, A Meditation on the Theoretics of Practice, 43 HASTINGS L.J. 971 (1992).

[FN250]. Id. at 973.

[FN251]. Id. at 972.

[FN252]. Id. at 977.

[FN253]. See William H. Simon, Lawyer Advice and Client Autonomy: Mrs. Jones's Case, 50 MD. L. REV. 213 (1991).

[FN254]. Id. at 215.

[FN255]. Id.

[FN256]. Id. at 216.

[FN257]. Boria v. Keane, 99 F.3d 492, 494 (2d Cir. 1996).

[FN258]. The police had given an informant that money to use in making a narcotics purchase.

[FN259]. N.Y. PENAL LAW § 220.41(1) (McKinney 1997) [hereinafter P.L.] defines criminal sale of a controlled substance in the second degree as knowingly and unlawfully selling one-half ounce or more of a narcotic drug.

[FN260]. P.L. § 220.41.

[FN261]. P.L. § 70.00(2), (3).

[FN262]. P.L. § 220.39(1) defines criminal sale of a controlled substance in the third degree as knowingly and unlawfully selling a narcotic drug.

[FN263]. Under New York State's statutory scheme, this was the lowest permissible charge reduction and sentence for an adult accused of a Class A-II felony. See N.Y. CRIM. PROC. LAW § 220.10(5)(a)(ii) (McKinney 1997) [hereinafter C.P.L.]; P.L. § 70.00. In certain limited situations where the accused is “providing material assistance” to law enforcement officials, a sentence of lifetime probation is possible upon conviction of a class A-II felony. P.L. § 65.00(1)(b).

[FN264]. The superseding indictment would charge the defendant with criminal sale of a controlled substance in the first degree, a Class A-I felony. P.L. § 220.43(1) defines criminal sale of a controlled substance in the first degree as knowingly and unlawfully selling two or more ounces of a narcotic drug. A Class A-I felony carries a minimum sentence of fifteen years to life imprisonment and a maximum of twenty-five years to life. See P.L. § 70.00(2), (3).

[FN265]. The lowest permissible charge reduction and sentence for an adult charged with a Class A-I felony is to an A-II felony with a sentence of three years to life imprisonment. See C.P.L. § 220.10(5)(a)(I); P.L. § 70.00. In certain cases where the defendant is cooperating with law enforcement authorities, a sentence of lifetime probation is permissible upon conviction of an A-II felony. See supra note 263.

[FN266]. Defense counsel testified at length at a hearing on the defendant's motion for an order vacating his conviction on the ground, inter alia, of constitutionally inadequate representation of counsel. He stated repeatedly his view that it is the client's decision whether to plead guilty, and that his role does not include shepherding the client into doing what the lawyer thinks is best. As a result, he did not specifically advise his client whether to accept or reject the plea. Rather, he laid out numerous factors that were part of the calculus of that decision. See the transcript of the hearing [hereinafter II.] on file with the author at 27-28, 50, 52-53, 56, 60.

[FN267]. Boria v. Keane, 83 F.3d 48, 53, 54 (2d Cir. 1996).

[FN268]. U.S. CONST, amend. VI.

[FN269]. It is well-settled that the failure of defense counsel to inform the defendant of an offered plea bargain can amount to the deprivation of the right to the effective assistance of counsel. See supra notes 154-58 and accompanying text.

[FN270]. Boria, 83 F.3d at 54 (quoting MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 7-7 (1992)).

[FN271]. See id. at 48.

[FN272]. ANTHONY G. AMSTERDAM, TRIAL MANUAL 5 FOR THE DEFENSE OF CRIMINAL CASES (1989).

[FN273]. 83 F.3d at 52 (emphasis in original) (quoting TRIAL MANUAL 5, § 201, at 339). The opinion says that “the word ‘must’ was emphasized by the author; otherwise, the emphasis is ours,” 83 F.3d at 53. In fact, the author, Professor Amsterdam, did not use any emphasis.

[FN274]. Id. at 52-53 (emphasis in original). Interestingly, the court in Napper, supra note 208, one of the few cases to find that counsel's neutrality on the plea decision is ineffective assistance, also cited this passage from Amsterdam's TRIAL MANUAL.

[FN275]. The prosecution moved for rehearing, alleging that the Antiterrorism and Effective Death Penalty Act of 1996 should be applied retroactively to the defendant's habeas corpus petition.

[FN276]. Boria v. Keane, 90 F.3d 36 (2d Cir. 1996).

[FN277]. Id. at 37 n.2.

[FN278]. See Boria v. Keane, 99 F.3d 492 (2d Cir. 1996).

[FN279]. Id. at 497 (emphasis in original). Once again, the court wrote that “the word ‘must’ was emphasized by the author; otherwise, the emphasis is ours.” Id. In fact, the word “must” was not emphasized by Professor Amsterdam.

[FN280]. There is only one other change in the opinion. Originally, the court prefaced its quotation of the TRIAL MANUAL by noting that Professor Amsterdam “discusses the question (of the defense attorney's duty to advise regarding the desirability of a plea) in more detail.” Boria, 83 F.3d at 52. The final opinion, in an apparent effort to minimize the significance of the language in the TRIAL MANUAL, states merely that Professor Amsterdam “observed.” Boria, 99 F.3d at 496.

[FN281]. See, e.g., Robert G. Morvillo, Reasoned Strategic Choice or Ineffective Counsel?, N.Y. L.J., Dec. 3, 1996, at 3 (observing that the court was indicating a “willingness to secondguess apparent ‘strategic choices' made by defense attorneys,” and that “[c]riminal defense practitioners should take note” because actions previously “shielded from ineffective assistance attack ... might no longer be unassailable”). In a subsequent letter to the editor, Morvillo explained that his article referred to the first Boria opinion. In his view, the final decision, by climinating any reference to the need for defense counsel to use “persuasion,” avoided putting attorneys in the position of being accused of coercing clients, and therefore ameliorated the concerns he expressed in his article. See Robert G. Morvillo, Letter to Editor, N.Y.L.J., Dec. 6, 1996, at 2. In the President's Column in The Champion, a publication of the National Association of Criminal Defense Lawyers (“NACDL”), Judy Clarke communicated ambivalence about the decision, but pointed out the importance of the case and the necessity for defense attorneys to confront the myriad issues involved when counseling clients. NACDL, Judy Clarke, President's Column: A Conscience Check, THE CHAMPION, Apr. 1997, at 9.

[FN282]. Telephone interview with Judge Whitman Knapp, United States Court of Appeals for the Second Circuit, (Mar. 24, 1997).

[FN283]. Id.

[FN284]. Id.

[FN285]. I am grateful to my colleague David Garland for highlighting other troubling aspects of the case, particularly the questions raised by a system that deems sentences of one to three years and 20 years to life as appropriate for the same act. Much scholarship concerns the practice of defendants' receiving greater punishment when convicted after trial. See, e.g., FEELEY, supra note 133; Albert W. Alschuler, Implementing the Criminal Defendant's Right to Trial: Alternatives to the Plea Bargaining System, 50 U. CHI. L. REV. 931, 978-94 (1983); Alschuler, supra note 99; David Brereton & Johnathan D. Casper, Does It Pay to Plead Guilty? Differential Sentencing and the Functioning of Criminal Courts, 16 LAW & SOC'Y REV. 45, 55-61 (1981-82). That important and disturbing part of the criminal justice system is beyond the scope of this Article.

[FN286]. 93 F.3d 58 (2d Cir. 1996).

[FN287]. Id. at 62.

[FN288]. Id. (emphasis in original).

[FN289]. Id.

[FN290]. Id.

[FN291]. 93 F.3d at 63.

[FN292]. 124 F.3d 73 (2d Cir. 1997).

[FN293]. Id. at 79.

[FN294]. Id.

[FN295]. Dean, 93 F.3d at 62.

[FN296]. Id. at 63.

[FN297]. The idea of a continuum is borrowed from Dinerstein, supra note 42, at 569.

[FN298]. WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 1179 (9th ed. 1991) [hereinafter WEBSTER'S], Dinerstein describes suggestion as “a mild form of advice stated in tentative terms.” See Dinerstein, supra note 42, at 569 n.306 (citing A. BENJAMIN, THE HELPING INTERVIEW 128 (2d ed. 1974)).

[FN299]. See, e.g., Binder, Bergman & Price, Lawyers as Counselors: A Client-Centered Approach, 35 N.Y.L. SCIL L. REV. 29, 33 (1990).

[FN300]. WEBSTER'S, supra note 298, at 1298.

[FN301]. See Hill v. Lockhart, 474 U.S. 52, 58 (1985); Strickland v. Washington, 466 U.S. 668, 688 (1984). The only hint that there were in fact some counseling requirements appeared in cases where counsel took a neutral position and the client pleaded guilty to the highest charge and maximum sentence. Expressing some concern that the constitutional obligation of effective assistance might mandate more than neutrality, some courts observed that in “special” or “unusual” circumstances, counsel should take a more active role in the counseling process. See supra notes 116-24 and accompanying text.

[FN302]. See supra notes 154-58 and accompanying text.

[FN303]. See supra notes 159-72 and accompanying text.

[FN304]. See supra notes 173-75 and accompanying text.

[FN305]. See, e.g., Dean, 93 F.3d at 62; United States v. Teague, 953 F.2d 1525, 1535 (11th Cir. 1992) (defendant's will not overborne regarding the decision whether to testify at trial).

[FN306]. See, e.g., Uphoff, supra note 31, at 81, 131 (noting that clients can be influenced in subtle ways, and that the line between “reasonable persuasion” and “manipulation” is not a bright one). See also text accompanying notes 343-44 infra.

[FN307]. See Boria, 99 F.3d at 497.

[FN308]. The holding does not limit itself to cases of “special” or “unusual” circumstances. See supra notes 116-24 and accompanying text.

[FN309]. MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 7-7 (1992).

[FN310]. Boria, 99 F.3d at 498 (quoting MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 7-7 (1992) (emphasis added)). The attorney's duty to offer an opinion has been recognized in related circumstances. See, e.g., Von Moltke v. Gillies, 332 U.S. 708, 721 (1948).

[FN311]. Boria, 99 F.3d at 496 (emphasis added); see also Dinerstein, supra note 249, at 977 n.15 (“In practice, judges often assume that experienced lawyers will be able to persuade their clients to accept what the lawyer believes is in their best interest, and that such persuasion is both appropriate and necessary.”).

[FN312]. See supra notes 92-112 and accompanying text. Although the court in Boria did not explicitly require that counsel seek to persuade a client to plead guilty in a case where the attorney believes a plea is necessary in order to avoid disastrous consequences, it seems that rarely, if ever, will such attempts be found to amount to the ineffective assistance of counsel.

[FN313]. 947 F.2d 1106 (4th Cir. 1991).

[FN314]. Id. at 1111 (citing Strickland, 466 U.S. at 688-89) (“No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.”).

[FN315]. 475 U.S. 157 (1986).

[FN316]. 947 F.2d at 1111 (citing Nix, 475 U.S. at 165).

[FN317]. See supra text accompanying note 270.

[FN318]. In Strickland, the Court suggested that the American Bar Association standards were useful as “guides to determining what is reasonable.” 466 U.S. at 688.

[FN319]. ABA STANDARD FOR CRIMINAL JUSTICE § 14-3.2(a) states that “[d]efense counsel should ... ensure that the decision whether to enter a plea of guilty ... is ultimately made by the defendant.” Subsection (b) provides that “[t]o aid the defendant in reaching a decision, defense counsel, after appropriate investigation, should advise the defendant of the alternatives available and considerations deemed important by defense counsel or the defendant in reaching a decision.” ABA STANDARDS FOR CRIMINAL JUSTICE, PLEAS OF GUILTY § 14-3.2(a), (b) (2d ed. Supp. 1986) [hereinafter ABA PLEAS OF GUILTY].

[FN320]. ABA STANDARD FOR CRIMINAL JUSTICE § 4-5.1(a) specifies that “[a]fter informing himself or herself fully on the facts and the law, defense counsel should advise the accused with complete candor concerning all aspects of the case, including a candid estimate of the probable outcome.” Subsection (b) states that “[d]efense counsel should not intentionally understate or overstate the risks, hazards, or prospects of the case to exert undue influence on the accused's decision as to his or her plea.” ABA STANDARDS FOR CRIMINAL JUSTICE, PROSECUTION FUNCTION AND DEFENSE FUNCTION § 4-5.1(a), (b) (3d ed. 1993) [hereinafter ABA DEFENSE FUNCTION]. The commentary to this standard, after observing that the decision whether to plead is ultimately for the defendant to make, provides that “[o]nce the lawyer has concluded that it is in the best interests of the accused to enter a guilty plea, it is proper for the lawyer to use reasonable persuasion to guide the client to a sound decision.” ABA DEFENSE FUNCTION § 4-5.1 commentary.

[FN321]. ABA DEFENSE FUNCTION § 4-5.2(a)(1) states that the decision whether to accept a plea agreement is ultimately for the accused to make after full consultation with counsel. ABA DEFENSE FUNCTION, supra note 320. The commentary to this section adds that “[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. Ultimately, however, because of the fundamental nature of decisions such as these, so crucial to the accused's fate, the accused must make the decisions himself or herself.” ABA DEFENSE FUNCTION, supra note 320, § 4-5.2 commentary.

[FN322]. EC 7-7 provides that “[a] defense lawyer in a criminal case has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable ....” MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 7-7 (1992).

[FN323]. Nor for that matter did the Jones court mention Ethical Consideration 7-7 and its clear language imposing a duty on defense counsel to inform clients whether a plea appears to be advisable. It seems that the ABA Standards are no more helpful than the Model Rules and the Model Code in delineating precisely counsel's role in the decisionmaking process. See supra notes 233-34 and accompanying text.

[FN324]. H., supra note 266, at 28.

[FN325]. H., supra note 266, at 56. At other points during his testimony he made the same point abundantly clear. See, e.g., H., supra note 266, at 60 (“Q-And when did you first advise Mr. Boria with respect to accepting or rejecting the proffered plea? A-I never did.”).

[FN326]. See supra note 322.

[FN327]. H., supra note 266, at 236-37.

[FN328]. Id. at 184.

[FN329]. Binder, Bergman & Price, supra note 299, at 33.

[FN330]. Id. at 64. The authors also state that “[n]eutrality requires that you appear to have no favorites among the available alternatives.” Id.

[FN331]. See id. at 54; see also supra note 240 and accompanying text.

[FN332]. Binder, Bergman & Price, supra note 299, at 54.

[FN333]. Another scholar's view of client-centered counseling maintains the permissive nature of advice-giving, but allows attorneys to advise clients, in certain circumstances, without having to wait for the client's request. See Dinerstein, supra note 42, at 570.

[FN334]. As one scholar points out, Binder and Price do not confront the significance of Ethical Consideration 7-7's mandate that criminal defense attorneys have a duty to advise their clients as to whether a plea offer appears desirable. See Dinerstein, supra note 42, at 535 n.154. In fact, Dinerstein found that of the 140 times when it was possible to identify the subject matter of the examples used by Binder, Bergman and Price, only 13 related to the criminal law. See Dinerstein, supra note 224, at 699 n.5.

[FN335]. See supra notes 249-52 and accompanying text.

[FN336]. See supra notes 253-56 and accompanying text.

[FN337]. Given the client's statement that she was unhappy with her prior attorney because he had “strongly urged” her to accept a negotiated disposition, and that she apparently had some sort of emotional or mental problems, the prospects of trying to persuade her were daunting. On the other hand, by not weighing in, the student attorneys could be seen by their client as agreeing with her decision to litigate the case at trial, a decision that proved to be unfortunate.

[FN338]. Often, in the attorney's estimation, the advisability of accepting or rejecting a plea offer is not clear. In those situations, counsel should advise the client consistent with that proposition. See supra notes 353-58 and accompanying text.

[FN339]. See Simon, supra note 253, at 213.

[FN340]. See Strickland v. Washington, 466 U.S. 668, 688 (1984).

[FN341]. See, e.g., United States v. Jerome, 933 F. Supp. 989, 995 (D.C. Nev. 1996) (the court emphasized that counsel did not advise the defendant what to do, and that it was unaware of any authority for the suggestion that the failure to make a recommendation can amount to ineffective assistance).

[FN342]. See, e.g., Dinerstein, supra note 42, at 580 (“Client-centered lawyering stresses the desirability of the lawyer's neutrality towards the client's ends. But such neutrality is inevitably false; as sentient and feeling beings, lawyers cannot help but have opinions about what their clients should do, and cannot help but have those opinions affect how they relate to clients.”); William II. Simon, The Dark Secret of Progressive Lawyering: A Comment on Poverty Law Scholarship in the Post-Modern, Post-Reagan Era, 48 U. MIAMI L. REV. 1099, 1102 (1994) (“There is no value-free mode of communication in which clients could be presented with unfiltered information needed for decision.”); THOMAS L. SHAFFER & JAMES R. ELKINS, LEGAL INTERVIEWING AND COUNSELING IN A NUTSHELL 131-32 (2d ed. 1987).

[FN343]. See, e.g., Ellmann, supra note 227, at 746 (counsel must simplify the vast possibilities; developing a list of options and their advantages and disadvantages offers countless opportunities for attorney influence); Simon, supra note 253, at 217; Spiegel, supra note 218, at 325 (a lawyer's decisions about what information to include can significantly affect client decisions).

[FN344]. See, e.g., Robert W. Gordon, The Independence of Lawyers, 68 B.U. L. REV. 1, 26-30 (1988); Simon, supra note 253, at 217 (“[L]awyers influence clients by myriad judgments, conscious or not, about what information to present, how to order it, what to emphasize, and what style and phrasing to adopt.”); Spiegel, supra note 218, at 326 (“This problem of having an inevitable influence on client choice cannot be avoided .... There is no completely neutral point from which to decide what information to include, how to describe it, and what clarifying interventions are appropriate.”).

[FN345]. Addressing all the sundry factors that go into this evaluative process, although critically important, is beyond the scope of this Article. Similarly, determining the optimal timing of this crucial counseling is an important consideration that merits a separate study. Ideally, the attorney will have developed a relationship of mutual trust and respect with his or her client, see, e.g., ABA DEFENSE FUNCTION, supra note 320, § 4-3.1; Goodpaster, supra note 24, at 74 (“The major obligation of defense counsel is to try and make herself effective. This means ... attempting to develop an effective working relationship with the defendant.”), and will have completed factual and legal research, see, e.g., ABA DEFENSE FUNCTION, supra note 320, §§ 4-3.2, 4-4.1, and 4-6.1 (6) (“[u]nder no circumstances should defense counsel recommend to a defendant acceptance of a plea unless appropriate investigation ... has been completed ....”). Often, counsel will not have had sufficient opportunity to achieve these goals prior to having to discuss the advisability of a plea offer, but it is the ideal to strive for.

[FN346]. See, e.g., AMSTERDAM, supra note 272, at 340-43.

[FN347]. See, e.g., Roy B. Flemming, If You Pay the Piper, Do You Call the Tune? Public Defenders in America's Criminal Courts, 14 L. & SOC. INQUIRY 393, 401-02 (1989); Jerome H. Skolnick, Social Control in the Adversary System, 11 J. CONFLICT RESOL. 52, 62 (1967) (discussing the defense approach that “emphasizes decisions most likely to maximize gain and minimize loss in the negatively valued commodity of penal ‘time.”’).

[FN348]. See supra note 285.

[FN349]. AMSTERDAM, supra note 272, at 339.

[FN350]. Alschuler, supra note 99, at 1309-10.

[FN351]. See, e.g., Simon, supra note 253, at 216 (describing an attorney influencing a client to plead guilty by, among other things, choosing to discuss the disadvantages of a trial last).

[FN352]. See infra note 363 and accompanying text.

[FN353]. See supra note 345 and accompanying text; see also Uphoff, supra note 31, at 131 (“[H]ow hard counsel can lean turns on the seriousness of the case, the harm facing the defendant, the client's ability to make informed decisions, the certainty of the harm, the client's rationale for his or her decision and the means used to change the defendant's mind.”).

[FN354]. What happens when counsel believes there is no clear best choice? That conclusion itself should become the advice required by Boria. Although it is neutral in that counsel is not making a particular recommendation, the client is not left alone trying to guess what the attorney thinks or what is the optimal choice. Contrast that “neutrality” with a lawyer who says nothing regarding the merits of a plea versus trial. The advice is “neutral” only to the extent that it does not recommend a particular choice; it is not neutral in the sense that counsel remains silent as to this critical decision.

[FN355]. 385 A.2d 521 (Pa. Superior Ct. 1978).

[FN356]. Id. at 522.

[FN357]. 99 F.3d 492 (2d Cir. 1996).

[FN358]. Id. at 495. Contrast with the situation in Jones v. Murray where counsel estimated a 70% probability of conviction. 947 F.2d at 1110.

[FN359]. See, e.g., AMSTERDAM, supra note 272, at 339 (“Of course, s/he must make absolutely clear to the client that if the client insists on pleading not guilty when the lawyer thinks a guilty plea wise, the lawyer will nevertheless defend the client vigorously and will raise every defense that the client legitimately has.”); Alschuler, supra note 99, at 1310 (arguing that a lawyer should not be permitted to threaten a client that she will withdraw from the case unless the client accepts the advice).

[FN360]. See, e.g., Welsh S. White, Effective Assistance of Counsel in Capital Cases: The Evolving Standard of Care, 1993 U. ILL. L. REV. 323, 375-76 (arguing that counsel should have a duty to seek to establish a relationship of trust with the client, but acknowledging that the courts are not well-equipped to evaluate counsel's efforts in that regard).

[FN361]. In re Alvernaz, 2 Cal. 4th 924, 933 (Cal. 1992); see also AMSTERDAM. supra note 272, at 339 (“[C]ounsel's appraisal of the case is probably better than the defendant's.”).

[FN362]. See, e.g., Dincrstein, supra note 42, at 575 (suggesting that when lawyers decline to give advice, clients might suspect that the attorney's motivation is to avoid malpractice liability).

[FN363]. See, e.g., Stephen Ellmann. The Ethic of Care as an Ethic for Lawyers, 81 GEO. L.J. 2665 (1993) (an ethic of care leading to more intervention by the attorney); Charles Ogletree, Beyond Justifications: Seeking Motivations to Sustain Public Defenders, 106 HARV. L. REV. 1239, 1271-75 (1993) (extolling the value of empathy in the practice of indigent defense). The American Bar Association Standards state that “defense counsel should seek to establish a relationship of trust and confidence with the accused ....” ABA DEFENSE FUNCTION, supra note 320, § 4-3.1; see also Berger, supra note 65, at 52 (“Because a defense attorney plays so many roles in our system of justice–advocate, adviser, negotiator, spokesperson, champion and, sometimes, friend–the accused's interest in the quality of his rapport with counsel lies at the very core of the right to representation.”). But cf. Morris v. Slappy, 461 U.S. 1, 14 (1983) (a “meaningful relationship” between defendant and counsel is not required by the Sixth Amendment); Mann v. Reynolds, 46 F.3d 1055, 1060 (10th Cir. 1995); Siers v. Ryan, 773 F.2d 37, 44 (3d Cir. 1985).

[FN364]. BINDER ET AL., supra note 236, at 261 (emphasis in original).

[FN365]. Id.

[FN366]. See supra notes 92, 200 and accompanying text.

[FN367]. See supra notes 92, 200 and accompanying text.

[FN368]. Some commentators have argued that the perceived fairness of the process matters to defendants just as much as do the outcomes. See, e.g., Jonathan D. Casper, Having Their Day in Court: Defendant Evaluations of the Fairness of Their Treatment, 12 L. & SOC'Y REV. 237 (1978); Tom R. Tyler, The Role of Perceived Injustice in Defendants' Evaluations of Their Courtroom Experience, 18 L. & SOC'Y REV. 51 (1984). To a defendant in a criminal case faced with the realization that an assertion of the constitutional right to a trial could result in an increased sentence, it is unlikely that the process will ever seem fair and equitable. Still, if an attorney takes the time and makes the effort to advise and attempt to persuade, the decisionmaking process should seem more fair than if the attorney merely tells the client what to do, or instead declines to offer any opinion.

[FN369]. See, e.g., Dinerstein, supra note 42, at 576 (observing that advocates of client-centered counseling “may improperly assume that clients are rational decisionmakers,” but cautioning that “[w]e should be extremely suspicious of categorical judgments about client irrationality and impaired decisionmaking capacity.”); Charles Ogletree & Randy Hertz, The Ethical Dilemmas of Public Defenders in Impact Litigation, 14 N.Y.U. REV. L. & SOC. CHANGE 23, 38-39 (1986).

[FN370]. 463 U.S. 745 (1983).

[FN371]. Id. at 764 (Brennan, J., dissenting).

[FN372]. Id. at 763 (Brennan, J., dissenting).

[FN373]. See id. at 751.

[FN374]. See Boria v. Keane, 90 F.3d 36, 37 n.2 (2d Cir. 1996) (“The initial opinion in this case did not hold that it is constitutionally ineffective assistance of counsel when a lawyer's advice regarding the wisdom of accepting or rejecting a plea offer fails to convince the client.”).

[FN375]. 618 A.2d 1290 (Vt. 1992).

[FN376]. In fact, the defense called expert witnesses, two highly regarded and experienced defense attorneys, to testify as to the lengths to which they would have gone in an attempt to persuade the client to accept the plea offer.

[FN377]. The court noted that the defendant “cites no cases supporting his contention that an attorney who fails to persuade a client to accept a plea agreement violates the Strickland standard of reasonable attorney competence.” Bristol, 618 A.2d at 1292.

[FN378]. 947 F.2d 1106 (4th Cir. 1991).

[FN379]. Id. at 1111.

[FN380]. See, e.g., Ellmann, supra note 227, at 767 (“[T]he lawyer's advice may affect the client not by overpowering but by informing him.”).

[FN381]. See, e.g., Ellmann, supra note 227, at 767 (“It seems fair to say that a lawyer who avoids giving advice to a client capable of assessing it is acting with disrespect towards her client by failing to treat him as a competent person.”); Dinerstein, supra note 42, at 577 (“[C]lient-centeredness may be seen as condescending towards clients. Why should not poor clients, the original subjects of client-centered practice, be able to receive advice from their lawyers without immediately acceding to it?”).

[FN382]. See, e.g., Torrey E. Fuller et al., Criminalizing the Seriously Mentally Ill: The Abuse of Jails as Mental Hospitals, A Joint Report of the National Alliance for the Mentally Ill and the Public Citizen's Health Research Group (1992); H.R. Lamb & R.W. Grant, The Mentally Ill in an Urban County Jail, 39 ARCH. GEN. PSYCHIATRY 17 (1982); John Petrich, Rate of Psychiatric Morbidity in a Metropolitan County Jail Population, 133 AM. J. PSYCHIATRY 1439 (1976); Linda A. Teplin, Prevalence of Psychiatric Disorders Among Incarcerated Women, 53 ARCH. GEN. PSYCHIATRY 505 (1996) (finding that 80% of her sample of women pretrial detainees met criteria for one or more lifetime psychiatric disorders, and 70% were symptomatic within six months preceding her interview of them); Fox Butterfield, By Default, Jails Become Mental Institutions, N.Y. TIMES, Mar. 5, 1998, at Al.

[FN383]. See, e.g., Associated Press, Drugs and Booze Big Crime Factors, DAILY NEWS, Mar. 23, 1998, at 14; Christopher S. Wren, Connecticut Plan Would Cut Prison Time for Some Drug Offenders, N.Y. TIMES, May 6, 1998, at Bl; Christopher S. Wren, Drugs or Alcohol Linked to 80% of Inmates, N.Y. TIMES, Jan. 9, 1998, at A14 (discussing the findings of the National Center on Addiction and Substance Abuse).

[FN384]. See supra note 18 and accompanying text.

[FN385]. In United States v. Alexander, the court grappled with the admissibility of what defense counsel referred to as evidence of the defendant's “rotten social background.” 471 F.2d 923, 959 (D.C. Cir. 1973). Writing in support of admitting the evidence, Judge Bazelon noted the possibility of a “significant causal relationship between violent criminal behavior and a ‘rotten social background.”’ Id. at 965. One scholar, addressing the implications of Alexander, discussed the effects of various types of environmental deprivation on individuals. See Richard Delgado, “Rotten Social Background”: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation?, 3 J.L. & INEQUALITY 9 (1985).

[FN386]. See, e.g., Delgado, supra note 385, at 35-36.

[FN387]. See, e.g., Alschuler, supra note 99, at 1313 (“The principal vice of the guilty-plea system is that it turns major consequences upon a single tactical decision, and few defendants seem truly capable of making the decision for themselves.”).

[FN388]. See, e.g., G. Mandler, Stress and Thought Processes, in HANDBOOK OF STRESS: THEORETICAL AND CLINICAL. ASPECTS.

[FN389]. Simon, supra note 253, at 216-19. Professor Simon noted the “sense of deliverance” he felt when the doctor informed him, “[i]n the case of my own child, I decided to give him the shot.” Simon, supra note 253, at 217. He stated further that “I felt, and still do, that that sentence was all that I needed or wanted to know.” Simon, supra note 253, at 217.

[FN390]. See, e.g., Zeidman, supra note 92, at 898; PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: THE COURTS (1967).

[FN391]. Certainly, part of the difficulty confronting the students and faculty in Dinerstein's case was that they were given only four weeks to prepare for trial. See Dinerstein, supra note 249, at 972; see also Dinerstein, supra note 42, at 586 n.377.

[FN392]. See AMSTERDAM, supra note 272, at 339-40 (“[C]ounsel's difficult and painful responsibilities include making every reasonable effort to save the defendant from the defendant's ill-informed or ill-estimated choices.”).

[FN393]. See, e.g., Alschuler, supra note 99.

[FN394]. It is not so much about convincing someone who proclaims his innocence to plead guilty, or persuading someone to give up his right to a trial. Often, the defendant wants not to plead guilty, with the resulting sentence of imprisonment, rather than affirmatively wanting to go to trial. Even so, the despondence remains.

[FN395]. See supra note 20 and accompanying text.

[FN396]. For arguments that withholding advice is paternalistic and that neutrality is not actually possible, see supra notes 380-81, 342-44 and accompanying text.

[FN397]. North Carolina v. Alford, 400 U.S. 25, 37-38 (1970).

[FN398]. United States v. Cronic, 466 U.S. 648, 656 n.19 (1984).

[FN399]. 930 F. Supp. 189 (E.D. Pa. 1996).

[FN400]. Id. at 192. The court in Jones v. Murray found that counsel's decision not to try to change his client's mind, in the context of his client's professed innocence, was within the range of professionally competent assistance. See 947 F.2d at 1111. In United States v. Gordon, 979 F. Supp. 337 (E.D. Pa. 1997), the court considered whether counsel was required to recommend a plea offer to a client who vigorously asserted his innocence. Apparently overlooking Boria, the court stated, “[w]e found no case which holds that an effective defense lawyer in criminal cases must offer advice on sentence-triggering pleas to a client who insists he is actually innocent of the charges against him.” Id. at 340. That, of course, was the precise situation in Boria. The defendant proclaimed his innocence repeatedly, the offer involved a sentence of incarceration and the court held that counsel was required to advise his client about the desirability of a plea.

[FN401]. See, e.g., Zeidman, supra note 92, at 890 n.132.

[FN402]. The Model Code of Professional Responsibility, Ethical Consideration 7-7 (1992) provides that “it is for the client to decide whether he will accept a settlement offer.” EC 7-7 goes on to state that counsel in criminal cases “has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable,” but that “it is for the client to decide what plea should be entered.” Some have argued that the severe potential repercussions and the specific constitutional protections make client decisionmaking and autonomy particularly appropriate for criminal defendants. See, e.g., Morris, supra note 51, at 795-96; Rodney J. Uphoff, The Role of the Criminal Defense Lawyer in Representing the Mentally Impaired Defendant: Zealous Advocate or Officer of the Court, 1988 WIS. L. REV. 65, 71 n.19. It is for precisely those reasons, among others, that I believe that the lawyer has an obligation to be actively involved in the decisionmaking process.

[FN403]. See, e.g., Simon, supra note 253, at 225 (“The crude autonomy view is attractive to lawyers because it absolves them of the burdens of connection and the responsibilities of power by suggesting that they can perform their duties simply by presenting a professionally defined package of information.”); Spiegel, supra note 218, at 337 (“The attractiveness of the autonomy view can stem from its denial of responsibility and that is a substantial problem.”).

[FN404]. See supra notes 281, 362 and accompanying text. Taken to its extreme, the attorney relegates himself to being a conduit. He passes along all relevant information but abstains from imparting any opinions or advice.

[FN405]. 463 U.S. 745 (1983).

[FN406]. Wainwright v. Sykes, 433 U.S. 72, 93 n.1 (1977) (Burger, C.J., concurring) (the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his own behalf, or take an appeal). Indeed, in TRIAL MANUAL. 5, Professor Amsterdam begins his discussion of the lawyer's counseling obligations by citing to Jones v. Barnes and noting that the decision to plead must ultimately be left to the client's wishes. “Counsel cannot plead a client guilty, or not guilty, against the client's will.” AMSTERDAM, supra note 272, at 339.

[FN407]. See, e.g., White, supra note 360, at 371 (“If the attorney has investigated the case thoroughly, and at the same time has worked closely with the client so as to develop a relationship of trust and respect, the likelihood of inducing the defendant to accept an appropriate plea offer increases dramatically.”).

Watch 13 minutes of the Frontline program The Plea that tell the story of Patsy Kelly Jarrett.

First, please watch this clip, which provides a six-minute introduction to Jarrett’s story. (The clip begins at 37:36 and please watch until 44:16.)

Second, please watch this clip, which provides the next seven–minute segment of her story. (The clip begins at 1:02:54 and please watch until 1:10:31.)

Please read pages 674-75 (you do not need to read Problem 12-1) and pages 682-684 (up to "Gilly was suspended for a year.")

[2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others.

N.Y. Rule 1.2(a):

Subject to the provisions herein, 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 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.

Comment 1

[1] Paragraph (a) confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer’s professional obligations. The decisions specified in paragraph (a), such as whether to settle a civil matter, must also be made by the client. See Rule 1.4(a)(1) for the lawyer’s duty to communicate with the client about such decisions. The lawyer shall consult with the client with respect to the means by which the client’s objectives are to be pursued. See Rule 1.4(a)(2).

N.Y. Rule 1.4

(a) A lawyer shall:

(1) promptly inform the client of:

(i) any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(j), is required by these Rules;

(ii) any information required by court rule or other law to be communicated to a client; and

(iii) material developments in the matter including settlement or plea offers.

(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 a client’s 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 these Rules 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.

Comments 1, 2, 3 and 5

[1] Reasonable communication between the lawyer and the client is necessary for the client to participate effectively in the representation.

Communicating with Client

[2] In instances where these Rules require that a particular decision about the representation be made by the client, paragraph (a)(1) requires that the lawyer promptly consult with the client and secure the client’s consent prior to taking action, unless prior discussions with the client have resolved what action the client wants the lawyer to take. For example, paragraph (a)(1)(iii) requires that a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously made clear that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer. See Rule 1.2(a).

[3] Paragraph (a)(2) requires that the lawyer reasonably consult with the client about the means to be used to accomplish the client’s objectives. In some situations — depending on both the importance of the action under consideration and the feasibility of consulting with the client — this duty will require consultation prior to taking action. In other circumstances, such as during a trial when an immediate decision must be made, the exigency of the situation may require the lawyer to act without prior consultation. In such cases, the lawyer must nonetheless act reasonably to inform the client of actions the lawyer has taken on the client’s behalf. Likewise, for routine matters such as scheduling decisions not materially affecting the interests of the client, the lawyer need not consult in advance, but should keep the client reasonably informed thereafter. Additionally, paragraph (a)(3) requires that the lawyer keep the client reasonably informed about the status of the matter, such as significant developments affecting the timing or the substance of the representation.

Explaining Matters

[5] The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. Adequacy of communication depends in part on the kind of advice or assistance that is involved. For example, when there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others. On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interest and the client’s overall requirements as to the character of representation. In certain circumstances, such as when a lawyer asks a client to consent to a representation affected by a conflict of interest, the client must give informed consent, as defined in Rule 1.0(j).

A lawyer shall not:

(a)

(1) suppress any evidence that the lawyer or the client has a legal obligation to reveal or produce;

(2) advise or cause a person to hide or leave the jurisdiction of a tribunal for the purpose of making the person unavailable as a witness therein;

(3) conceal or knowingly fail to disclose that which the lawyer is required by law to reveal;

(4) knowingly use perjured testimony or false evidence;

(5) participate in the creation or preservation of evidence when the lawyer knows or it is obvious that the evidence is false; or

(6) knowingly engage in other illegal conduct or conduct contrary to these Rules;

(b) offer an inducement to a witness that is prohibited by law or pay, offer to pay or acquiesce in the payment of compensation to a witness contingent upon the content of the witness’s testimony or the outcome of the matter. A lawyer may advance, guarantee or acquiesce in the payment of:

(1) reasonable compensation to a witness for the loss of time in attending, testifying, preparing to testify or otherwise assisting counsel, and reasonable related expenses; or

(2) a reasonable fee for the professional services of an expert witness and reasonable related expenses;

(c) disregard or advise the client to disregard a standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding, but the lawyer may take appropriate steps in good faith to test the validity of such rule or ruling;

(d) in appearing before a tribunal on behalf of a client:

(1) state or allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence;

(2) assert personal knowledge of facts in issue except when testifying as a witness;

(3) assert a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused but the lawyer may argue, upon analysis of the evidence, for any position or conclusion with respect to the matters stated herein; or

(4) ask any question that the lawyer has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person;

(e) present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter; or

(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

(1) the person is a relative or an employee or other agent of a client; and

(2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.

In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person.

Comment

Misrepresentation

[1] A lawyer is required to be truthful when dealing with others on a client’s behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. As to dishonest conduct that does not amount to a false statement or for misrepresentations by a lawyer other than in the course of representing a client, see Rule 8.4.

Statements of Fact

[2] This Rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of fact. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category; so is the existence of an undisclosed principal, except where nondisclosure of the principal would constitute fraud. Lawyers should be mindful of their obligations under applicable law to avoid criminal and tortious misrepresentation.

You will receive these instructions in class.

Please see instructions on Brightspace.

Please read pages 168-9 & 734 (starting at “D. Are lawyers really too zealous?”) -736.

[2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others.

[8] A lawyer's responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done. So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private.

[9] In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer's obligation zealously to protect and pursue a client's legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.

[1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.

The defense attorney-client relationship is like no other. It’s a tie that binds two very different people caught up in a high stakes battle—over money, custody, liability, freedom—even life. A client tells defense counsel sacred secrets carried to the grave.

The relationship also defies categorization. It isn’t familial or grounded in friendship. It isn’t sexual. And yet, it is inherently romantic; propelled by ardent need, it is at times surprisingly intimate. The bond asserts primacy, often to the detriment of others.

In law school, students are taught that a good defense attorney is a “zealous advocate.”

The noun version of zealous is zealot, defined as a fanatical believer in a greater calling. A zealot, with all of its negative connotations, is not what law students are told to be. A zealot is an extremist consumed by blind fervor who does dangerous and terrible things.

But after 20 years of practicing criminal law, I have come to believe that any defense lawyer who aspires to excellence is by necessity a zealot. A lawyer with the fire in the brain.

The fire drives the lawyer to take the hard cases. Up against the law, the facts and power of the state, the defense lawyer gets punched in the face, pinned to the mat and pulverized by a foe endowed with endless resources. There is vanishingly little they would not do for a client in dire straits, even at the expense of people and institutions they love dearly.

Sir Henry Brougham, a Scotsman, member of the House of Commons and a very able attorney, made this point to a dubious British Parliament in 1820. That year, George IV ascended the throne, becoming king of England. Almost immediately, he sought to strip his wife, Caroline, of her title as queen. King George despised his wife, and when she would not be bribed into leaving quietly, he pressed his allies in Parliament to introduce a Bill of Pains and Penalties to exile her from the monarchy because she had consorted with “a foreigner of low station” while living abroad. It was Brougham’s job to defend the queen.

Witness after witness came forward with titillating details of Caroline’s purported perfidy, all second- or third-hand reports. This testimony, elicited by the solicitor general for England and Wales, went on for days in the House of Lords. Caroline’s reputation was in tatters, her claim to the throne increasingly tenuous.

What no one had counted on, however, was Brougham’s savvy and ferocity. A supporter of the abolitionist movement and of reforms to the legal system that perpetuated unfairness and inequity, Brougham fought back. The real culprit, Brougham told Parliament, was the king himself, a man of few scruples and excessive appetites, who had not only cheated on his wife with numerous women but had secretly married one of them.

When the prosecution rested and Brougham prepared to introduce these revelations, many prevailed upon him to hold his tongue. Disgracing the king in this way could imperil the monarchy. Better to stay silent than pose this existential threat. Refusing, he explained:

“An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, among them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.”

I often reflect on Brougham’s words. In my 20s and early 30s, when I was a deputy federal public defender living in Los Angeles, I spent most of my time at work. I thought about my clients’ problems constantly. When I left my job in 2008 to follow my then-boyfriend north, I transitioned into clinical teaching in a law school setting. That meant fewer clients and less time in court. I married my boyfriend, and we had two children. I assumed that these life changes and the greater domesticity associated with them would loosen my clients’ claim on my time and attention; that the fires they lit in my brain would be reduced to embers.

But that’s not what happened. In 2013, my law students and I fought to free a man who had been wrongfully convicted of murder. He spent 34 years in prison for a crime he did not commit. The weeks-long retrial took a year of preparation. The case was in Los Angeles; I lived with my husband in San Francisco, our children were 4 and 2. But I, like Brougham, knew only one person in the world. I left my family for long periods of time.

Today my client, who was exonerated, is home.

That client’s success story, however, is an anomaly. I’ve represented hundreds of people. Often, those cases end in abject failure: convictions, lengthy sentences, unsuccessful appeals to indifferent courts. That is what it means to represent people on the wrong side of the facts, on the wrong side of the law. That is what it means when, inside and outside of the legal system, your clients are viewed as disposable. For every falsely accused, wrongfully convicted, or excessively sentenced client who prevailed against long odds, there are hundreds more languishing. Some will never get out.

A few of the clients I did manage to help, got into worse trouble later on or died early. The endless frustration and mounting exhaustion, the rage and despair I feel when I look at this bigger picture is at times incapacitating. And yet, all these years later, there is still a fire in my brain. Sometimes, I wish it would die out.

Brougham’s defense of Queen Caroline drove public opinion toward his client. Faced with a tidal wave of outrage on her behalf, the prime minister withdrew the bill. Though King George refused to let his wife attend the coronation, he could not deprive her of her title. But she held it for a scant three weeks before falling ill and dying. Brougham’s great victory, like so many legal battles, proved to be a Pyrrhic one.

Why choose to be this kind of lawyer, the one who fights for a stranger without regard “to the alarm, the torments, the destruction” it visits upon others, who may be friends, family, loved ones or the victims of what your client is accused to have done? You will lose and lose and lose, and even when you win, sometimes you will lose anyway.

Defending a client is less a job than a siren call: “To save that client by all means and expedients, and at all hazards and costs to other persons, and, among them, to himself, is his first and only duty,” said Brougham.

Great lawyers believe this.

Sometimes, I picture a different life. In this life, I step back, step away. I create inviolable boundaries. But then I think of Brougham’s words and their wounding truth. To aspire to greatness as a lawyer is to be afflicted by a single-minded ruthlessness and overriding sense of obligation in pursuit of a victory that is, at best, unlikely and fleeting.

That is the only kind of lawyer I know how to be. A zealot.

What It Means to Be a Zealous Advocate: A Behavioral Approach 

By Jon May, Verdict (June 4, 2024) (unedited version available at this link)

There is a small but growing movement to remove any reference to zealous advocacy from ethical codes. Those objecting to this language citing its use by lawyers in disciplinary proceedings trying to justify unethical conduct. There is also a movement in academia to convince law students that zealous advocacy on behalf of certain businesses and industries is wrong, and that they should dedicate themselves to the common good and not to the bests interests of their clients.

I believe that both movements are wrong, that zealous advocacy is an ethic that lawyers must subscribe to, and that zealous advocacy advances the public welfare in ways that advocacy solely on behalf of causes does not.

. . .

Part I: What Is a Zealous Advocate?

. . .

Any discussion of what it means to be a zealous advocate should begin with an acknowledgment that, with the exception of the District of Columbia and Massachusetts, no jurisdiction expressly requires that a lawyer be a zealous advocate on behalf of their client.

The ABA Model Rules of Professional Conduct, which has been adopted in some form by every state uses the words zeal, zealous, or zealous advocacy only in the preamble and in the comment to Rule 1.3, neither of which impose a binding obligation on lawyers. Indeed, thirteen states, have had these words removed from their ethical rules.

. . .

In criminal cases, lawyers and law professors have anchored the obligation of zealous advocacy in the right to counsel guaranteed by the Sixth Amendment and in the right to due process of law provided for by the Fifth and Fourteenth Amendments. Although the Supreme Court has opined on what zealous advocacy means, the Court has set a very low bar for the kind of representation defense counsel is constitutionally required to provide—a bar far lower than zealousness.

The Supreme Court discussed zealous advocacy in McCoy v. Ct. of Appeals of Wisconsin, observing:

The attorney must … provide his or her client precisely the services that an affluent defendant could obtain from paid counsel….the attorney must be zealous and must resolve all doubts and ambiguous legal questions in favor of his or her client.

However, the Court has not held that the Constitution requires that a defendant receive the assistance of a zealous advocate. The Sixth Amendment requires only that a defendant receive “effective assistance of counsel.” In Strickland v. Washington, the Supreme Court held that in order to establish that a defendant did not receive effective assistance of counsel the defendant must demonstrate that counsel “made errors so serious that counsel was not functioning as ‘counsel,’” and that counsel’s lapses rendered the trial so unfair as to “undermine confidence of the outcome.” What this means is that a lawyer need only be “reasonably effective,” and that in considering a claim that defense counsel did not do all that counsel should have on behalf of a defendant courts, were to “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” To make it perfectly clear that the measure of professional competence was not to be defined by ethical provisions which might place a higher burden on counsel, such as one of zealousness, the Court stated that ABA Standards and the like are merely “guides.”

There is as big a difference between “effective assistance of counsel” and “zealous advocacy,” as there is between a not-guilty verdict and life behind bars. Where a lawyer has failed to live up to their obligations under the very low standard of “effective assistance” there are consequences: a new trial for the defendant, potential sanctions against the lawyer by the bar, and in rare cases a malpractice suit. Where a lawyer fails to provide the most effective representation they are capable of, who is not zealous in their representation of the defendant, the defendant has no remedy—even in instances where they are actually innocent.

. . .

Part III: Why Zealous Advocacy Is an Essential Component of our System of Justice

If there are various motivations driving us to do our best for our clients, why do we even need to consider whether there is an obligation to be zealous advocates, whatever the limitations of such advocacy are in a particular case?

I suggest that zealous advocacy is critical to our identity as members of a profession engaged in the practice of law, not just people engaged in a business.

. . .

Some believe that eliminating zeal from ethical codes will reduce ethical violations or lapses. As I have tried to show, it is not zealous advocacy that is responsible for lawyers engaging in improper conduct. The causes of misbehavior will not suddenly evaporate with the elimination of language from an ethical code. Moreover, when individual lawyers abuse the legal system, there already are remedies that judges and bar associations can employ to sanction their misconduct.

. . .

The ethic or culture of zealous advocacy is the commitment we make to ourselves to counter all the things that happen in life that get in the way of our obligations to our clients. That is what makes our work a profession and not just a job.

1. Zeal and Overzealousness

For more than a century, the lawyer’s ethic of zeal has required, and has inspired, entire devotion to the interests of the client, warm dedication in the maintenance and defense of his rights, and the exertion of the lawyer’s utmost learning and ability.¹ In the classic statement by Henry Lord Brougham in 1820 in Queen Caroline’s Case:

[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of the consequences, though it should be his unhappy fate to involve his country in confusion.² *772 This “traditional aspiration” of zealous representation³ pervades all other professional obligations of the lawyer to her client.⁴

 Ordinarily, of course, a lawyer’s zeal on behalf of a client is to be exercised only within the law and the disciplinary rules.⁵ “Overzealousness,” therefore, connotes conduct that goes over, or beyond, the bounds of law and/or the disciplinary rules.⁶ By definition, therefore, it would appear that overzealousness can never be justified as ethical conduct. My argument here, however, is that zealous representation--“entire devotion to the interests of the client”--may sometimes require the lawyer to violate other disciplinary rules.

Three ethical rules that are universally recognized, and that are unquestionably sound and desirable, are that a lawyer shall not make a false statement of fact to a court,⁷ that a lawyer shall not make a false statement of material fact to a third person,⁸ and that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.⁹ Yet there are circumstances in which zealous representation, which embraces the ethical requirements of competence¹⁰ and confidentiality,¹¹ can require a lawyer to make a false statement to a court or to a third person, or to engage in other conduct involving dishonesty, fraud, deceit, or misrepresentation.

*773 II. Lying to Judges

Consider, for example, an issue raised with me several years ago by Legal Aid lawyers in Brooklyn. Some judges, they said, would routinely call defense counsel to the bench prior to trial in criminal cases and say, “Come on, let’s move this along. Did he do it or didn’t he?”¹²

In the large majority of cases, the honest answer to the judge’s question is, “Yes, Your Honor, he’s guilty as charged.” To say that, however, would be a violation of the ethical requirement of confidentiality and of the client’s constitutional privilege against self-incrimination.¹³ Accordingly, the “proper” response to the judge’s question is, “I’m sorry, Your Honor, but I can’t ethically answer that question.” However, the problem with that reply, and with similar non-responsive answers, the lawyers said, is that the judge invariably would assume that the lawyer had impliedly acknowledged her client’s guilt.¹⁴

Also inadequate to zealous representation and to maintaining the client’s confidences would be, “He has pleaded not guilty, Your Honor.” Again, the judge will infer an acknowledgment of guilt by the lawyer. A more pertinent response would be, “Your Honor, you know that you shouldn’t be asking me that question,” but that answer is likely to prejudice the client even more, both by implying guilt and by criticizing the judge.

In short, the judge has improperly placed the lawyer in the position of violating confidentiality and incriminating her client.

The response to the judge that is consistent with zeal, confidentiality, competence, and the Fifth Amendment, therefore, is, “Your Honor, I have no doubt that this defendant is not guilty.” That statement by the lawyer, however, would be intended to mislead the judge into believing something that the lawyer knows to be false.¹⁵ It would therefore appear to involve “dishonesty, fraud, deceit, or misrepresentation,” and to constitute a false statement of fact to the court. How, then, could one justify that?

*774 As noted earlier, the judge has no right to ask the question. Model Rule 1.6 protects all information relating to the professional relationship, which includes information that might be harmful or even simply embarrassing to the client.¹⁶ But, although the lawyer is trying to protect client information, there is nothing in the rule that sanctions a response that is calculated to mislead a judge.

I would like, therefore, to venture beyond the words of the ethical rules themselves, into the larger legal context of the lawyers’ role, into understanding inconsistent ethical rules in the light of reason, into the purposes of legal representation in criminal cases, and into moral philosophy. My authority for doing so is the Scope section of the Model Rules themselves.

The Scope section tells us that the Rules of Professional Conduct are “rules of reason.”¹⁷ It tells us further that the rules “presuppose a larger legal context shaping the lawyer’s role.”¹⁸ It tells us, moreover, that the rules must be interpreted “with reference to the purposes of legal representation and of the law itself.”¹⁹ Most important, it tells us that the black-letter rules “do not . . . exhaust the moral and ethical considerations that should inform a lawyer,” because “no worthwhile human activity can be completely defined by legal rules.”²⁰

I have already mentioned the constitutional protection of an accused against compulsory self-incrimination. I do not want to dwell on that here, other than to observe that a lawyer cannot, consistent with the Constitution, lead the client to believe that she is “acting solely in [the client’s] interest,” and then, in response to a judge’s question, become essentially “an agent of the State recounting unwarned statements.”²¹

In addition, in our constitutionalized adversary system,²² a criminal defendant is presumed to be innocent. The burden is on the prosecution to prove beyond a reasonable doubt that the defendant is guilty. The plea of not guilty does not necessarily mean “not guilty in fact,” for the defendant may simply be exercising his right to put the government to its proof. Further, the accused who knows that he is guilty has an absolute constitutional right to remain silent. Moreover, the lawyer’s role in that system is further defined by the ethical obligation to give “entire *775 devotion to the interests of the client.” As the ABA has said, therefore, the criminal defense lawyer is the client’s lone champion against a hostile world.²³

Moreover, as noted above, the Scope section of the Model Rules enjoins the lawyer to recognize that there are “moral and ethical considerations” beyond the rules themselves that should inform the lawyer’s professional conduct.²⁴ . . .  Let us return, then, to the judge who questions the lawyer about the guilt or innocence of his client. I have said that the lawyer is justified in answering, “Your Honor, I have no doubt that this client is innocent.” Here are my reasons.

First, the judge has no right to ask the question and to expect an honest answer. Second, the lawyer is forbidden by both her ethical and her constitutional responsibilities to answer the question honestly. Third, a refusal to answer will be taken as an admission of the client’s guilt. Fourth, the lawyer’s response is not literally false, because it is a form of morally justifiable equivocation. That is, although the lawyer’s statement is intentionally misleading, it is technically accurate, because the client is presumed to be innocent, and is not legally guilty until the jury has found him to be guilty after a trial. Moreover, the judge should know that the lawyer’s role--including the lawyer’s constitutional and ethical responsibilities-- justify the lawyer’s wide mental reservation: “My client is innocent, because under the Constitution and laws of the United States, my client is innocent until proven guilty beyond a reasonable doubt.”

In sum, returning to the Scope section of the Model Rules, I believe that this conclusion is consistent with the larger legal context of the lawyers’ role, including the client’s overriding constitutional right to effective assistance of counsel and his privilege against self- incrimination; that the conclusion is justified by treating the lawyer’s obligations--of zealous representation, of confidentiality, of competence, and of truthfulness to judges--as rules of reason, to be weighed according to context, including, here, a criminal trial; and that the conclusion is justified in terms of the “moral and ethical considerations that should inform a lawyer”³⁶ beyond the bounds of the disciplinary rules themselves.

*778 III. Deceiving Third Parties and Judges in Negotiations

With regard to deceiving third parties, we have, again, clear and desirable rules. Model Rule 4.1(a) forbids a lawyer to make a false statement of material fact to a third person.³⁷ Model Rule 8.4, as we have seen, forbids a lawyer to engage in conduct involving dishonest, fraud, deceit, or misrepresentation.³⁸

Assume, then, that the plaintiff in a civil case has said to his lawyer, “I would like to get a settlement of $100,000, but if the best you can do is $75,000, take it.” When the lawyer then opens negotiations with the defendant’s lawyer, the latter says, “We’ll give you $150,000, but not a penny more.” The plaintiff’s lawyer responds, “My client is insisting on no less than $200,000.” After further negotiations, the parties agree on $175,000.

It would appear that the plaintiff’s lawyer has violated Model Rule 4.1(a) by making a false statement of material fact to the defendant’s lawyer, and has violated Model Rule 8.4(c) by engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. His client has expressed a hope of recovering $100,000 and a willingness to settle for $75,000, and the lawyer has made a flat-out misrepresentation by saying that his client is insisting on nothing less than $200,000. Nevertheless, Comment 2 to Model Rule 4.1 defines this particular kind of misrepresentation of material fact as a “convention,” which means that it is permitted on grounds of acceptable mental reservation.³⁹ As the comment explains, “[u]nder generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact.”⁴⁰ Such “generally accepted conventions” include “a party’s intentions as to an acceptable settlement of a claim.”⁴¹ Moreover, the ABA has recognized that a client’s minimum or maximum settlement figure is protected under Model Rule 1.6 as confidential information.⁴² Thus, the opposing lawyer can identify the equivocation or mental reservation by awareness of his adversary’s role, including the adversary’s obligation of confidentiality, and an awareness of accepted custom in such circumstances.

What then if a judge, pursuant to law in the federal system and many states, requires the lawyers in a case before her to engage in *779 pretrial settlement conferences? One method used by some judges is to confer with each lawyer separately, and inquire as to each client’s minimum or maximum settlement figure.

The ABA Committee on Ethics and Professional Responsibility has recognized that such information is protected as confidential under Model Rule 1.6, and that giving such information to the judge will ordinarily significantly prejudice the client’s position in the case.⁴³ The Committee has also noted that the Model Code of Judicial Conduct forbids a judge to pressure parties to reveal confidential information.⁴⁴ Further, the Committee has recognized that judges enjoy a “superior position of authority,” particularly with respect to lawyers who appear before the judge regularly, and that some judges have abused that superior authority in compulsory settlement conferences.⁴⁵

Consistent with Comment 2 to Model Rule 4.1, therefore, the lawyer should be permitted to engage in the convention of giving the judge an inflated or deflated figure for purposes of settlement negotiations. Surely the judge will be as aware as opposing counsel of the lawyer’s role, of the lawyer’s ethical obligation of confidentiality, and of conventions in negotiation. More important, as the Committee has recognized, some judges have been known to abuse their superior position of authority. One way that happens, with no realistic opportunity for redress, is by the judge’s subsequently ruling against the client in any close questions that arise during trial if the lawyer refuses to answer the judge.⁴⁶ Accordingly, if a lawyer declines to respond to a judge’s demand for her client’s ultimate settlement position, it can be highly prejudicial to the client. These would seem to be compelling reasons to recognize that just as a lawyer can properly give an inflated or deflated settlement figure to an adversary, the lawyer may do likewise with a judge.

Nevertheless, with no adequate analysis or explanation,⁴⁷ ABA Formal Opinion 93-370 concludes that a lawyer may decline to answer the judge’s demand for an ultimate settlement figure, but that he cannot  *780 ethically give the judge an inaccurate figure.⁴⁸ For reasons already discussed, I disagree.

IV  Sting Operations Involving Dishonesty

In the 1960s, I was involved in efforts to enforce the District of Columbia’s rules against racial discrimination in housing. The only way to make a case of discrimination was through “testers.” An African-American couple would purport to be interested in buying or renting a house in a particular neighborhood. They would claim to be married and to have two children and a particular income level. Immediately after they were told that no houses were available for sale or rent in the neighborhood, a white couple purporting to have the same family and income would apply for a house. When the white couple was then shown two or three available houses, there would be persuasive evidence of racial discrimination.

This was a reasonable way--in fact, a necessary way--to carry the burden of proving discrimination. The problem is that under the Model Rules, my conduct would have been unethical. Acting through others (the testers), I made material misrepresentations of fact to the real estate brokers and engaged in conduct involving dishonesty, fraud, deceit, and misrepresentation.⁴⁹

As recognized by Second Circuit Judge James L. Oakes, “the private lawyer who participates in a sting operation almost necessarily runs afoul of the canons of legal ethics . . . .”⁵⁰ Oakes went on to explain that a lawyer is forbidden to “[e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation,”⁵¹ and that lawyers are subject to this duty even when they are not acting in their capacity as lawyers.⁵²

Despite the plain meaning of the ethical rules, however, courts regularly accept evidence that is produced by undercover or sting *781 operations. For example, two years before Judge Oakes’ observations, the Seventh Circuit was able to say:

This court and others have repeatedly approved and sanctioned the role of “testers” in racial discrimination cases. . . . It is frequently difficult to develop proof in discrimination cases and the evidence provided by testers is frequently valuable, if not indispensable. . . . [W]e have long recognized that this requirement of deception was a relatively small price to pay to defeat racial discrimination.⁵³

This judicial disposition to admit the fruits of sting operations is not restricted to cases of racial discrimination, but extends to commercial cases as well. For example, in a case involving testers who misrepresented themselves in order to expose trademark violations by a client’s competitor, the court held that excluding the evidence that had been obtained by the testers “would not serve the public interest or promote the goals of the disciplinary rules.”⁵⁴ Also, in another unfair trade case, the court relied on an affidavit of Professor Bruce Green, who stated that “[t]he prevailing understanding in the legal profession is that a public or private lawyer’s use of an undercover investigator to detect ongoing violations of the law is not ethically proscribed, especially where it would be difficult to discover the violations by other means.”⁵⁵ Again, the court admitted the evidence developed through a sting operation involving misrepresentations.⁵⁶

What, then, is a conscientious lawyer to do? Can she, consistent with zealous representation, fail to develop essential evidence that is only available through a sting operation? Indeed, if “the prevailing view in the legal profession” is that such conduct is not ethically proscribed, and if courts are admitting such evidence, can a lawyer comply with the obligation of competent representation if she fails to conduct the sting that is essential to establishing her client’s rights?⁵⁷

V Conclusion

This Article has dealt principally with three ethical rules that are both clear and highly desirable--Model Rule 3.3(a)(1), which forbids a *782 lawyer to make a false statement of fact to a tribunal; Model Rule 4.1(a), which forbids a lawyer to make a false statement of material fact to a third person; and Model Rule 8.4(c), which proscribes conduct involving dishonesty, fraud, deceit, or misrepresentation. It has also recognized that overzealousness, by definition, refers to conduct that exceeds the bounds of ethical rules.

Nevertheless, I have argued that there are circumstances in which zealous representation--that is, “entire devotion to the interests of the client”--may sometimes require the lawyer to violate these salutary disciplinary rules.

In reaching that conclusion, I have ventured beyond the words of the ethical rules themselves, into the larger legal context of the lawyers’ role, into understanding inconsistent ethical rules in the light of reason, into the purposes of legal representation, and into moral philosophy.

My authority for doing so is the Scope section of the Model Rules themselves. The Scope section tells us that the Rules of Professional Conduct are “rules of reason.”⁵⁸ It tells us further that the rules “presuppose a larger legal context shaping the lawyer’s role.”⁵⁹ It tells us, moreover, that the rules must be interpreted “with reference to the purposes of legal representation and of the law itself.”⁶⁰ Most important, it tells us that the black-letter rules “do not . . . exhaust the moral and ethical considerations that should inform a lawyer,” because “no worthwhile human activity can be completely defined by legal rules.”⁶¹

Accordingly, by considering the larger legal context of the lawyer’s role, including our clients’ constitutional rights; by understanding inconsistent ethical rules in the light of reason; and by applying insights of moral philosophy, I have concluded that there are circumstances in which a lawyer can ethically make a false statement of fact to a tribunal, can ethically make a false statement of material fact to a third person, and can ethically engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

. . .

INTRODUCTION

What is the societal role of lawyers for vulnerable clients? Important literature on lawyering for poor clients explores how lawyers might better support the agency, insights, and values of such clients.¹ Pivoting outward from the internal dynamics between clients *1476 and lawyers, another vital inquiry is what lawyers can and should do to promote the interests of their clients in relation to outside forces.² Monroe Freedman and Abbe Smith have suggested that “the central concern of lawyers’ ethics ... is how far we can ethically go--or how far we should be required to go--to achieve for our clients full and equal rights under law.”³ This Article asks whether the answer should turn on client vulnerability.

Part I lays out the basic terms of the discussion. Part I.A borrows from Martha Fineman’s theory of vulnerability⁴ to make the following three points. First, vulnerability is ubiquitous, rather than unusual, in the human condition. Second, vulnerability varies between people, due largely to social and economic forces. Third, given the commonality and variability of vulnerability, creation of an equal society requires the state to design social structures that acknowledge and correct for the vulnerabilities of the citizenry. Fineman’s vulnerability theory offers a launching pad for conceiving of how the legal system might better acknowledge and account for vulnerability.

Lawyers comprise a fundamental aspect of the legal system,⁵ so an important target for analysis is lawyers’ conduct: to reimagine the legal system is to reimagine the role of lawyers. Part I.B examines the ethic of zeal, one of the fundamental principles of the legal profession. Lawyers balance the role of zealous advocate with those of officer of the court and public citizen. When the obligations of these roles conflict, the standard expectation is for lawyers to prioritize the interests of their clients but stay within the bounds of the law.

Part I.C questions whether the ethic of zeal should be applied evenly in every case. It is generally assumed that lawyers must act as neutral partisans,⁶ exercising the utmost zeal regardless of the client’s *1477 social position or moral standing, but perhaps the neutral approach deserves reexamination. Substantive equality might be furthered by variability in the exercise of zeal.

To investigate these topics in greater detail, Part II analyzes a specific scenario in which a lawyer assists a client in obtaining welfare benefits to which the client may be “technically ineligible.”⁷ Deborah Rhode, who first described the scenario, proposes that prioritizing the interests of the client above formal law is defensible in part because the client is poor.⁸ Her example provides support for the notion that zeal should vary based on the social position of the client. On the other hand, the standard conception of the lawyer’s role suggests a uniform approach to zeal, and tinkering with that approach could introduce moral judgments that lawyers would prefer to avoid. After considering potential challenges and other perspectives on the variability of zeal, the Article turns to the task of envisioning how increased zeal on behalf of vulnerable clients could further the pursuit of equal justice.

Client vulnerability should influence how lawyers interpret their obligations and ration their efforts. Three key forms of vulnerability justify the use of heightened zeal: (1) the absence of market power to purchase legal representation; (2) the absence of political power to shape law; and (3) the presence of basic human needs. Part III of the Article proposes consideration of these factors and offers an initial sketch of how they might be operationalized. The Article concludes that substantive equality requires consideration of these factors of vulnerability and heightened zeal on behalf of vulnerable clients.

I. SHOULD VULNERABILITY INFLUENCE ZEAL?

 A. The Vulnerability Consideration

Imagine that our legal system were structured to acknowledge and account for the vulnerabilities of the persons within it. Martha Fineman has articulated a theory that assists with undertaking this thought experiment.⁹ She highlights the inescapability of vulnerability in the human condition and the essential function of social institutions *1478 shaping and responding to it.¹⁰ Fineman interprets vulnerability not as the condition of certain populations but as a universal condition that is mediated by social institutions.¹¹ She offers an ambitious theory that not only frames vulnerable subjects in physical and social contexts, but also suggests that consideration of vulnerability is fundamental to the pursuit of substantive equality.¹²

The following three aspects of Fineman’s vulnerability theory will be relevant. First, Fineman identifies vulnerability as a universal, rather than unusual, aspect of the human condition . . . Second, vulnerabilities range from person to person, due not only to physical differences but also to economic and social factors. Vulnerability “is greatly influenced by the quality and quantity of resources we possess or can command.”¹⁵ Although vulnerability cannot be eradicated, “society can and does mediate, compensate, and lessen our vulnerability through programs, institutions, and structures.”¹⁶ Society’s institutions produce, or fail to produce, social, political, and economic resilience, conferring privilege and disadvantage.¹⁷

Third, the public bears a responsibility to build social institutions in consideration of vulnerability and how different social structures influence it.¹⁸ Specifically, a formal approach to equality should give way to a theory of substantive equality in which the state takes *1479 significant responsibility for the condition in which it finds and leaves all of its subjects.¹⁹

Fineman contrasts her notion of the “vulnerable subject” with what she views as the “autonomous and independent subject asserted in the liberal tradition.”²⁰ She describes the liberal subject as “indispensable to the prevailing ideologies of autonomy, self-sufficiency, and personal responsibility, through which society is conceived as constituted by self-interested individuals with the capacity to manipulate and manage their independently acquired and overlapping resources.”²¹ . . .

This challenge prompts the inquiry of how the legal system might better empower vulnerable subjects. As lawyers comprise a fundamental aspect of the legal system,²⁷ an important target for analysis is lawyers’ conduct. One of the fundamental principles of lawyering is the ethic of zeal.

B. The Ethic of Zeal

A lawyer balances the roles of zealous advocate, officer of the court, and public citizen. In the face of competing duties, lawyers *1480 traditionally prioritize the role of zealous advocate within the bounds of the law and governing disciplinary rules.²⁸ Scholars have debated whether and to what extent zeal on behalf of clients should trump concern for third parties. Below is a brief exploration of the ethic of zeal.

Zeal refers to the dedication with which the lawyer pursues her client’s interests.²⁹ The ethic of zeal is one of abiding tenacity and loyalty. The famous quotation from Lord Henry Broughman instructs:

[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of the consequences, though it should be his unhappy fate to involve his country in confusion.³⁰

This portrait of the lawyer depicts a zealous partisan whose devotion to her client supersedes all other social obligations.³¹ In Monroe Freedman’s most famous and most controversial depiction of the lawyer as a zealous advocate,³² he concludes that in some cases it is proper for a lawyer to cross examine for purposes of discrediting the credibility of a witness who the lawyer knows to be telling the truth; put a witness on the stand who the lawyer knows will commit perjury; and give a client legal advice that the lawyer believes will tempt the client to commit perjury.³³ Freedman acknowledges that many lawyers find clever ways to avoid coming to terms with these situations when they arise; they shield themselves from knowledge³⁴ or withdraw.³⁵ Freedman argues, however, that lawyers should confront these dilemmas directly and acknowledge when other ethical  *1481 obligations must give way to the ethic of zeal.³⁶ Although Freedman’s interpretation of the ethic of zeal may appear extreme, to a large degree he spells out a standard conception codified in professional ethics rules and exemplified by lawyers’ conduct across the country.³⁷

The justifications for prioritizing zeal on behalf of clients are as deep-seated as justifications for the adversary system itself. The adversary system’s structure embodies constitutional values--protection of individual dignity, pursuit of truth through the expression of diverse perspectives, and promotion of democratic government³⁸--and constitutional rights that lawyers could jeopardize if they subordinated zeal to other social goals. Beyond sacrificing individual clients’ procedural and substantive rights, this could arguably thwart the functioning of the legal system.³⁹

Untrammeled zeal does, however, present drawbacks. Scholars like William Simon,⁴⁰ David Luban,⁴¹ and Deborah Rhode⁴² have argued convincingly that lawyers’ obligations to third parties, both individuals and society at large, should receive greater recognition. If lawyers take “superaggressive”⁴³ zeal too far, it might result in social harms.⁴⁴ These could include negative effects on truth-seeking, disregard for and damage to third parties, and diminished respect for lawyers and the legal system.⁴⁵ . . . . Not surprisingly, the Model Rules of Professional Conduct (“the Rules”) state that lawyers must contain their zeal within the bounds of the law.⁴⁸

Where lawyers have discretion in the application of zeal, however, the Rules provide limited guidance. Lawyers must balance their roles as zealous advocates, officers of the court, and public citizens, but the Rules suggest that this is relatively easy; the drafters claim that the exercise of zeal is “harmonious” with other obligations, such as candor toward tribunals and fair dealing with third parties.⁴⁹ Moreover, while the Rules reference lawyers’ “special responsibility for the quality of justice,”⁵⁰ they provide little indication of how justice might influence the exercise of zeal. The Rules do not indicate that the social position of a client may enter the calculus. The next section of this Article introduces the proposition that it should.

C. Neutrality

In the standard conception of the lawyer’s role, the principle that goes hand-in-hand with zeal is neutrality.⁵¹ Neutrality requires that the lawyer represent clients regardless of the lawyer’s views of the client or the client’s ends. The duties of neutrality and zeal are interrelated: the lawyer’s combined obligation is the zealous pursuit of the client’s goals without moral judgment.⁵²

Consideration of a client’s vulnerability might threaten the principle of neutrality. To suggest that lawyering for different clients might be approached differently appears at odds with a constitutional framework that espouses government neutrality. The attempt to *1483 identify, let alone regulate, a substantive conception of public good may be controversial in a liberal democracy like the United States.⁵³

. . . . A key question of this Article is whether the vulnerability of a client can justify heightened zeal--acts of zeal that might otherwise cross ethical boundaries. This inquiry is inspired partly by Monroe Freedman’s observation that criminal defense lawyers must compromise the interests of third parties more frequently than most members of the bar will admit.⁵⁸ Freedman’s loyalty to his clients is *1484 deeply compelling. Yet, fidelity to the client above other parties is only as good as the reason for it. It is difficult to believe that the legal system serves fundamental values like individual human dignity when the market allocates lawyers to individuals on an uneven basis.⁵⁹ In a society where the vulnerability of the citizenry and their access to the legal system vary, the system may require adjustment to provide equal justice for all. Promoting substantive equality may require acknowledging and compensating for the social positions of vulnerable clients. Below is a discussion of one way lawyers might do so.

II. TEST OF ZEAL FOR VULNERABLE CLIENTS

[omitted]

III. A NEW APPROACH TO ZEAL ON BEHALF OF VULNERABLE CLIENTS

The standard conception of lawyers’ role cautions us to avoid double standards in zealous advocacy, to exercise zeal within the bounds of the law and accepted norms, and, if dissatisfied with the formal laws, to seek to change them.¹⁸¹ The realities of lawyering in a society with an unequal distribution of power and resources, however, provide reason to question this approach. The commonality and variability of vulnerability make it necessary to develop flexible and creative interpretations of the law. To promote and protect an equal society, the legal system ought to recognize people as it finds them and empower people in the positions they occupy. As agents of the legal system, lawyers should account for the differences between clients. Lawyers should consider client vulnerability when rationing their efforts. Client vulnerability will, in some cases, tip the balance towards increased zeal.

Drawing on themes underscored in the case studies discussed above, this third and final Part of the Article will identify particular forms of client vulnerability that justify increased zeal on the part of lawyers. Each identified category serves to acknowledge and compensate for an aspect of vulnerability that requires attention in a system of equal justice. The key forms of vulnerability are: (1) the absence of market power to purchase legal services;¹⁸² (2) the absence *1498 of political power to shape the law;¹⁸³ and (3) the presence of basic human needs.¹⁸⁴ Below is a brief sketch of the purpose and definition of these categories.

A. Absence of Market Power to Purchase Legal Services

The frequent absence of market power to purchase legal services creates a dynamic of underrepresentation that calls out for correction. In the aggregate, people without the capacity to purchase legal services generally have fewer lawyers than those able to pay. As a result, certain interests and positions are overrepresented, while others are underrepresented.¹⁸⁵ For example, it is not surprising that in a housing court where twelve percent of tenants are represented and ninety-eight percent of landlords are represented, judges’ perceptions of the law reflect the landlords’ views.¹⁸⁶ This makes zealous advocacy on behalf of the tenants all the more vital.

The absence of market power to purchase legal services is a factor that can be defined in concrete terms without posing a fundamental challenge to the neutral partisan ethic.¹⁸⁷ To evaluate whether a client has the market power to purchase legal services, one *1499 could consider whether the client paid for legal representation.¹⁸⁸ This consideration could be adjusted to account for whether the person took out a loan to pay, whether the person paid a limited amount based on a sliding scale, or whether the fee was paid through a statutory fee-shifting provision rather than from the client’s independent resources.¹⁸⁹

Clients with the means to pay lawyers will always have the services of lawyers for as long as they wish to pay. Poor clients who depend on volunteer lawyers and lawyers employed by overburdened public and non-profit offices experience heightened vulnerability.¹⁹⁰ The latter group of lawyers must divide their time between many clients. Pro bono attorneys provide representation only if the lawyers view the clients or causes as worthy.¹⁹¹ Even lawyers committed full time to the representation of poor clients depend for their own financial support on the conception of the clients’ needs as worthwhile in the eyes of public or private funders.¹⁹² These combined factors put the clients in a particularly precarious position compared with that of clients who can purchase legal services on the market.

Increased zeal on behalf of clients without the market power to purchase legal services complements the legal system. Persons unable to afford legal representation are generally less likely to receive any representation. When represented, they are likely to be represented less aggressively than those able to pay handsome sums.¹⁹³ The lawyers that do represent such persons should therefore use the opportunity to aggressively promote such clients’ views. The zealous *1500 representation of parties usually underrepresented in the legal system serves to bolster the diversity of viewpoints expressed in the system.¹⁹⁴ This improves the system both as a matter of fairness¹⁹⁵ and through enrichment of the marketplace of ideas.¹⁹⁶ To the extent that the adversary system and the ethic of zeal serve values such as that of individual dignity, the marketplace of ideas, and democratic government, it makes sense to put a thumb on the scale on behalf of those who tend not to have their voices heard.¹⁹⁷

B. Absence of Political Power to Shape Law

The absence of political power to shape the law is a second form of vulnerability that should tip the balance towards increased zeal on behalf of a client.¹⁹⁸ Political power informs the basic ground rules of the legal system, as those with power design the legal structure to fit their experiences and expectations. Political power further influences the framing and direction of political debates and potential for change. People who lack the capacity to influence legislatures are limited in their capacity to shape and change formal law.¹⁹⁹ That lack of political accountability in the creation of the formal law should influence how lawyers approach their obligations in relation to that law. Representing clients who lack political power requires more flexibility and creativity in interpretation. Increased zeal is justified because the lack of political power diminishes clients’ capacity to advance their interests through alternative means.²⁰⁰

*1501 The absence of political power can be defined using existing literature on equality theory.²⁰¹ New research by Bertrall Ross II and Su Li on suspect classes offers a particularly useful approach.²⁰² In contrast to the Supreme Court’s recent emphasis on the presence of laws favoring a group’s interests, these scholars note that factors other than political power, such as legislators’ ideology, may result in legislation favorable to a group.²⁰³ They therefore suggest consideration of the degree of organized lobbying advancing the group’s interests; political responsiveness to the group’s anticipated preferences; voter turnout; and descriptive representation in politics.²⁰⁴ Additional research could be done to further refine these factors, but they provide an excellent starting point.

It should be recognized that the focus on political power requires recognizing clients as members of social groups. This may seem to cut against the common emphasis on individual rights in lawyering ethics. Yet vulnerability is largely a socially constructed phenomenon and addressing it requires an analysis grounded in a social context.

C. Presence of Basic Human Needs

The third form of vulnerability that should tip the balance towards increased zeal is the presence of basic human needs. This aspect may be the most important. The consideration of basic human needs suggests that attorneys may and should fight harder when certain interests are at stake. Meeting basic human needs is an essential prerequisite for an equal society. When those basics are jeopardized, extra protection is warranted.

It might seem intuitive that the higher the stakes for the individual, the more effort should be expended to protect those interests, but the current structure of the legal system suggests otherwise. Substantive and procedural rights often rank basic human needs below property rights. As just one example, many states expedite and streamline eviction proceedings; removing a tenant from her home is, procedurally, faster and easier than recovering a nominal sum of money.²⁰⁵ The defendant’s potential deprivation of shelter *1502 receives relatively little attention in the design of the adjudication system. To increase zeal on behalf of clients with basic needs at stake is to suggest a different order of priorities.

The priorities should not be difficult to define. A number of sources provide material helpful for identifying basic human needs. In addition to international human rights laws and the constitutions of various other nations,²⁰⁶ we also have a more familiar source. Almost a decade ago, the American Bar Association (“ABA”) adopted a resolution advocating the appointment of counsel in civil matters where “basic human needs are at stake.”²⁰⁷ The ABA resolution defines basic human needs to include five categories: shelter, sustenance,²⁰⁸ safety, health, and child custody.²⁰⁹ At the least, this seems a fine starting point for articulating the basic human needs that, when threatened, put a client in a position of vulnerability that justifies a heightened level of attorney zeal on his or her behalf.

***

Vulnerability turns on multiple social and physical factors. The presence of basic human needs, the absence of the political power to change formal law, and the absence of the market power to purchase legal representation each play a part. Scholars and advocates must analyze lawyers’ obligations and social role contextually. Equality *1503 does not necessarily mean treating a wealthy client the same as a much poorer one. In a system of justice, equality may instead require recognizing the differences in clients’ vulnerabilities and adjusting legal structures accordingly.²¹⁰

CONCLUSION

The current reality for vulnerable clients is that their lawyers often face criticism and punishment for acts of zeal,²¹¹ while, at the same time, these lawyers lack the support needed to maintain levels of zeal remotely comparable to that expended for the privileged. The problem is not an ethical compunction of the lawyers for vulnerable clients but rather a limitation on time, energy, and resources.²¹² When calls are made for increased resources, this generally refers to increased funding.²¹³ Indeed, a significant shift in funding could improve zeal on behalf of vulnerable clients. As some lawyers have argued, such shifts are necessary for lawyers and government funders to comply with their ethical and constitutional obligations.²¹⁴ These arguments deserve our attention.

At the same time, Fineman’s emphasis on designing social systems with vulnerable subjects in mind points toward more creative solutions. If we were willing to entertain the possibility of approaches to zeal adjusted for the vulnerabilities of clients, we might imagine new structures to facilitate it. Many of the existing facets of criminal procedure were crafted to support defense lawyers’ ability to advocate zealously for their vulnerable clients. In particular, *1504 asymmetry is built into the criminal process for the purpose of counteracting defendants’ vulnerability in relation to the state.²¹⁵ Perhaps other mechanisms could be fashioned, in the civil or criminal context, to acknowledge and compensate for social inequalities.²¹⁶ Given increasing inequalities between client populations, combined with the ongoing inequality in the distribution of lawyers, it is time to begin rethinking uniform standards of zeal.

As a profession, we try year after year to overcome our poor reputation. Is there an underlying reason for all this “bad press”? Could it be that zealous representation of a client became an excuse for zealotry in the practice of law?

*6 In the Preamble to Maryland’s Rule of Professional Conduct, Maryland lawyers are exhorted to “zealously assert the client’s position under the rules of the adversary system.” The same Preamble recognizes that a delicate balance exists between the lawyer’s “obligation zealously to protect and pursue a client’s legitimate interests ... while maintaining a professional, courteous, and civil attitude toward all persons involved in the legal system.” Sometimes that balance goes off-kilter. This article proposes some reasons why that might happen.

A Brief History of the Zealous Representation Obligation

Zealous representation found its voice in Lord Henry Brougham, who in 1821 represented Queen Caroline on a charge of adultery which, among other things, would have stripped her of her crown, if found guilty. Lord Brougham’s words, set forth in the Trial of Queen Caroline 8 (1821), sounded the clarion call of zealousness by setting forth a veiled threat that during a trial he would expose facts about the King that would strip the King of his crown and bring down the government. Lord Brougham said:

[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty: and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of the consequences, though it should be his unhappy fate to involve his country in confusion.

 In those words there is no recognition of balancing the client’s interests with any thought of consequences. Indeed, country or consequences be damned; the client shall be represented at all hazard and cost to others, or to the lawyer himself, if necessary.

About one hundred years later, in 1908, the American Bar Association adopted the First Canons of Professional Ethics requiring lawyers to give “entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights ....” It appears that zealous representation in the original canons of ethics was retained as a Rule directing fierce devotion to the client.

In 1983, however, the American Bar Association Model Rules of Professional Conduct made it clear that a lawyer was not only to represent his client zealously, but also to be a “public citizen having special responsibility to the quality of justice.” Thus in 1983, the Model Rules moved the discussion of zealous representation from the body of the Rules to the Preamble. Maryland followed suit thereafter.

Maryland’s Rules of Professional Conduct contain admonitions designed to harness the no-holds-barred attitude toward representing the client’s interest at all cost. There is a focus on a lawyer’s duty to others in the legal system -- the courts and opposing parties and counsel. There are admonitions not to bring or assert frivolous claims (Rule 3.1); to make reasonable efforts to expedite litigation (Rule 3.2); to be truthful toward the tribunal (Rule 3.3); to be fair to the opposing party and counsel (Rule 3.4); to be truthful in statements to others (Rule 4.1).

The Preamble to the Maryland Rules also recognizes that there is a tension inherent in the sometimes conflicting duties. It states, “Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibility to clients, to the legal system and to the lawyer’s own interests in remaining an ethical person while earning a satisfactory living.”

The Inheritance from Our History

Even though the modern Rules of Professional Conduct moderate the concept of zealousness by requiring concern for the “others” in the legal system, our profession remains plagued by the very lack of concern for those others that the Rules call for. There is no need to chronicle here the extensive writings of incivility, rudeness, or offensive tactics in our profession. A quick read through the Maryland Judicial Commission’s Report on Professionalism published in May, 2007 confirms that we have a problem.

Its source may be the clarion call that Lord Brougham issued over 200 years ago. It was a clarion call not to zealous representation but to zealotry. Zealotry is something our profession has inherited through a misguided interpretation of the message that our first duty is to represent clients zealously.

What is a Zealot?

A zealot is a fanatic who will go to any length to accomplish an end. In *8 1821 when Lord Brougham said that in the discharge his duty he would essentially destroy the government and would not regard “the destruction which he may bring on others,” he announced his zealotry in the practice of law. In the 21^st Century, we see similar types of zealotry. For example, the lawyers in the Department of Justice in 2002, admittedly patriotic lawyers helping to fight the war on terror, ultimately issued legal advice that concluded that water-boarding and other aggressive interrogation techniques were not torture.

Zealotry in the practice of law? In the view of some, yes. For example, a former United States Department of Justice Office of Legal Counsel Attorney and Professor of Law at University of Colorado Law School says the lawyers “became advocate[s] for any theory of law no matter how implausible, that would allow what the administration wanted to do, for example, harsh interrogation. It is clear that this attitude resulted from fear of another terrorist attack and the resulting pressure that was felt ... to do anything that might prevent one.

The bad advice did not result from bad or evil intentions ... [the lawyers just] lost sight of the essential nature of a lawyer’s role,” which Professor Bruff believes is the exercise of independent judgment even in the face of an insistent client with a strong belief that it is protecting the world from evil. (http://writ.news.findlaw.com/dean/20090501.html, last visited 10/9/10.)

We do not need to go to the extreme issue of defining the boundaries of torture to examine zealotry, however. Indeed, it is quite easy to become a zealot in the practice of law at any given time in the context of any given issue because we can hide our zealotry behind the duty of zealous representation. Court cases warn us of the slippery slope. As Judge Raker said in Attorney Grievance Commission of Maryland v. Culver, 381 Md. 241 (2004):

To be sure, “the American lawyer’s professional model is that of zeal ....” C. Wolfman, Modern Legal Ethics, §10.3.1, Nature of the Principle of Zeal, at 578 (1986). But zeal is not boundless and some limits are acknowledged by all, although the limits are not always *9 clear. See Little v. Duncan, 14 Md. App. 8, 15, 284 A.2d 641, 644 (1971) (stating that “[z]eal in advocacy is commendable, but zeal, even in advocacy, without bounds may be contemptuous and disruptive”).

* * *

And Judge Arrie Davis, in Reed v. Baltimore Life, 127 Md. App. 536 (1999), wrote:

Lest there be any doubt that we favor -- indeed believe an adversary system demands no less -- zealous advocacy, we reiterate unequivocally that it is in an advocate’s duty to use legal procedure for the fullest benefit of the client’s cause, but it is also a duty not to abuse legal procedure.

Where the lines are drawn and where the boundaries are between zealous representation and zealotry may not be clear, but here are a few of the signs that we are crossing the line. The first sign is we begin to believe that we are on the side of the angels. When we have a vulnerable client severely hurt in an accident; or one that is a victim of insidious discrimination; or a person bilked by the fraudulent acts of others, it is an easy first step to believe that we are on the side of the angels. Or maybe we have a client who is the righteous protector of the public good, fighting systemic violations of the rights of the poor, or the powerless. Or it may be that we represent government agencies whose responsibility it is to protect the public from all sorts of wrong doers. Surely, we may believe in those cases that the angels are on our side in our crusade for justice.

We can stop our slide into zealotry *10 here by recognizing the fact that all the angels are not on anyone’s side and no client is an angel. Our clients are mere human beings with foibles, good and bad natures and motives. While it is our job to be empathetic, it is also our job to remain detached from our client’s emotions, fears, and losses.

In that way we can live comfortably within the two roles that lawyers are called on to perform -- that of zealous advocate and independent counselor. Even in the context of zealous advocacy, Rule 2.1 requires us “[i]n representing a client, ... to exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”

But, if we insist on believing that we represent the angels and that all the angels are on our side, we have taken that first small step down the slippery slope into zealotry. The next step is a big one. We start to demonize our opposition. If we are on the side of the angels, our opposition must be on the side of the devil. It is really easy to become a zealot when we believe we are protecting our client from evil incarnate.

Now, without qualm of conscience we can use discovery to harass and bedraggle. We can include in our pleadings snarky comments about the opposing party and/or opposing counsel. How about twisting the law or facts in ways that they were never meant to go? We begin to believe that any action we take is justified and that every action of opposing counsel is morally bankrupt. Now we have crossed the line from zealous representative to zealot. We have become Lord Brougham. We will take no regard for the “alarm, the torments, the destruction [we] may bring upon others.”

When we get to this stage of the slide down the slippery slope, the examples are legion of the kinds of behavior in which we are willing to engage. In “Incivility: An Insult to the Professional and the Profession,” The ABA Brief, Vol. 37, Spring 2008, the authors Joseph Ortego and Lindsay Maleson provide us with a convenient list of such behaviors:

• a mindset that litigation is war that describes trial practice in military terms;
• a conviction that it is invariably in your interest to make life miserable for your opponent;
• a disdain for common courtesy and civility, assuming that they are ill-suited for the true warrior;
• a wondrous facility for manipulating facts and engaging in *11 revisionist history;
• a hair-trigger willingness to fire off unnecessary motions and to use discovery for intimidation rather than fact finding; and
• an urge to put the trial lawyer on center stage rather than the client or his[or her] cause.

Those behaviors are admittedly the extremes of zealotry in the practice of law. With all the best intentions, however, any one of us can start down that slippery slope. The “Ideals of Professionalism,” approved by the Maryland Court of Appeals on March 9, 2010 and promulgated by the Professionalism Commission effective July 1, 2010, may provide the brakes we need to stop our descent down the slope from zealousness to zealotry. A weekly reading of some of the specific “Ideals of Professionalism” should help. For example, the Ideals of Professionalism boldly state:

A Lawyer should:

• understand that an excess of zeal may undermine a client’s cause and hamper the administration of justice and that a lawyer can advocate zealously a client’s cause in a manner that remains fair and civil;
• know that zeal requires only that the client’s interests are paramount and therefore warrant use of negotiation and compromise, when appropriate, to achieve a beneficial outcome, understanding that yelling, intimidating, issuing ultimatums, and using an “all or nothing” approach may constitute bullying, not zealous advocacy.

Conclusion

If the Ideals of Professionalism become our guide, the distinction between zealous representation and zealotry will be clearly delineated and teachable. Once those Ideals are firmly established in our profession, one reason for our bad press may well be eliminated.

(The complete article is available at this link.)

Overview: ‘A Duty of Loyalty’

Almost 40 years ago, the United States Supreme Court acknowledged that a criminal defense counsel’s duty to represent a client is not without limits. The court wrote, “that duty is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth.”[i] Nevertheless, this position runs counter to the doctrine of zealous advocacy, which originated during proceedings in the British House of Lords in 1820 in which counsel for the embattled Queen Caroline – Lord Henry Brougham – in a revolutionary statement, proclaimed that a lawyer owes a duty of loyalty to the client alone rather than to the nation or other interests. A recent entry in “Corpus Juris Secundum” bears witness to Lord Brougham’s imprint on American legal culture:

An attorney bears a duty of loyalty to a client whereby the attorney devotes his or her entire energies to the client’s interests. The attorney-client relationship is grounded in the fundamental understanding that an attorney will give complete and undivided loyalty to the client so that the attorney should be able to advise the client in such a way to protect the client’s interests.[ii]

This zealous advocacy doctrine held a controversial place in our national standards of lawyer conduct during much of the last century, but lost ground in 1983 when the American Bar Association issued its Model Rules of Professional Conduct. The 1983 Model Rules omitted any reference to zealous advocacy except from the ABA Comments explaining the rules. In 2009, the New York bar regulators eliminated all references to the zealous advocacy doctrine from the state professional standards for lawyers, replacing it with the requirements that attorneys provide their clients with competent representation.[iii]

Nonetheless, even in 2024, lawyers and judges in New York continue to reference the zealous advocacy doctrine. The authors view this reliance as mistaken because the doctrine too often serves as justification for bullying adversaries, presenting false statements to the court and using “hardball” tactics in the problematic service of financial gain or political advantage.

From the most commonplace motion in local court to the most consequential application reaching the United States Supreme Court, competing approaches to honesty to the tribunal pull counsel in opposite directions. In this article, we argue that the doctrine of zealous advocacy unnecessarily pulls lawyers in the wrong direction, the direction advocated by Brougham two centuries ago. Unnecessarily because the zealous advocacy has been removed from the standards of lawyer conduct in New York State. Moreover, the doctrine pulls counsel in the wrong direction because it espouses principles that conflict, or at least compete, with several of the rules in the New York Rules of Professional Conduct, promulgated in 2009 and codified as a court rule in 22 NYCRR 1200.0.

The 75-page Rules of Professional Conduct and the supplementary NYSBA Comments – as opposed to ideas derived from the zealous advocacy doctrine – provide New York lawyers with the guidance needed for the ethical practice of law. As the “Corpus Juris Secundum” points out in a note about the limits of zealous advocacy: “The rules of professional conduct impose outer bounds on an attorney’s pursuit of a client’s interests.”[iv]

Zealous Advocacy and the Rules of Professional Conduct: ‘Totally Eliminated’

In 2009, a joint committee of the four departments that comprise the Appellate Division promulgated standards of lawyer conduct that omitted all references to zealous advocacy. The Rules of Professional Conduct replaced the 1970 Code of Professional Responsibility, which had incorporated the zealous advocacy doctrine and by so doing continued a tradition begun with the 1909 Canon of Ethics.

Just as the joint committee removed zealous advocacy from the Rules of Professional Conduct, NYSBA eliminated any references to the doctrine from the preamble, scope and comments, which include ethical precepts not part of 22 NYCRR 1200.0.[v] As New York ethicists Steven C. Krane and David A. Lewis observe: “The word ‘zeal’ has been totally eliminated from the Rules and replaced by the concept of ‘diligence.”[vi] Although gone from New York bar standards, the belief that the zealous advocacy doctrine has continued viability lives on in the professional literature, law offices and judicial decisions. Thus, proponents of the new standards have not yet vanquished the doctrine.

Conflict Between the Zealous Advocacy Doctrine and the Rules of Professional Conduct: ‘A Fundamental Tension’

Even when defined as zealous representation “within bounds of the law,” the zealous advocacy doctrine, in several significant respects, stands in opposition to the letter and spirit of the Rules of Professional Conduct.

1. Diligence Versus the Zealous Advocacy

Stating counsel’s basic obligation to a client, Rules of Professional Conduct 1.1[a] and 1.3[a], respectively, call for “competent representation” and “reasonable diligence,” in the representation of a client. With equal restraint, the NYSBA Comment to Rule 1.1[a] cautions that a lawyer is not required “to press for every advantage that might be realized for a client.” In contrast, a proponent of zealous advocacy, William R. Wernz, author of the online treatise “Minnesota Legal Ethics,” opines that the “merely diligent” lawyer “will not serve the client’s legitimate needs.”[vii] And, in an apparent attempt to the reconcile the two points of view, the Restatement (Third) of the Law Governing Lawyers observes that for “legal purposes” zealous representation “encompasses the duties of competence and diligence.”[viii]

2. Loyalty to the Justice System or the Client?

While recognizing counsel’s role as an advocate for the interests of a client, the first paragraph of the NYSBA preamble to the Rules of Professional Conduct teaches that “[a]s an officer of the legal system, each lawyer has a duty to uphold the legal process.” Proponents of zealous advocacy, on the other hand, minimize a lawyer’s duty to the justice system and place a premium on zealous counsel’s undivided loyalty to the client.

The conflict between the two approaches has confounded lawyers for decades. In an article published over 25 years ago, lawyers, the author notes, “often feel torn by the tension between the duty of zealous advocacy and the duty to the larger system of justice . . .”[ix] And as recently as 2023, an article stated: “The ‘competing conceptions’ of lawyer as zealous advocate versus lawyer as officer of the court is a fundamental tension in legal ethics.”[x]

3. Allocation of Authority

Another point of difference between the zealous advocacy doctrine and the Rules of Professional Conduct involves the allocation of decision-making authority. RPC 1.2[a] delegates to counsel authority over tactics, a principle that has long been recognized by state and federal courts, including the Supreme Court. This allocation of authority conflicts with the client-centered model of zealous lawyering that promotes client involvement in a broader range decision-making than is contemplated by the Rules of Professional Conduct.[xi]

4. Candor to the Tribunal

Writers on legal ethics recognize the tension between the zealous advocacy doctrine and the rules demanding honest dealing with the court. “. . . [D]efense attorneys are in practice held to a high standard of candor to the tribunal, leading to conflicts with zealous advocacy.”[xii] By arguing that it is permissible for counsel to lie to the court when counsel deems it necessary and in the client’s interest – as was advocated by Professor Monroe Freedman – the zealous advocacy doctrine competes with the obligation imposed on counsel by RPC 3.3[a]’s directive to avoid the knowing presentation of false statements to the court and RPC 8.4[c] prohibition of conduct involving dishonesty, fraud, deceit or misrepresentation.

Professor Freedman, who died in 2015, was an eminent ethicist and one of zealous advocacy’s greatest proponents. His writings encourage lawyers to subordinate truth and candor to the court to other values underlying the legal system. A critic of zealous advocacy cites Freedman’s writings on ethics in which he (Freedman) contends that while truth “is an important premise of the adversary system, it is neither the only premise nor the vital one.”[xiii]

The issues raised by the conflict between zealous advocacy and the Rules of Professional Conduct relate to the question of how far a lawyer should go in representing his client. Lord Brougham first offered an answer to this question in 1820.

[omitted]

Adoption of the New York Rules of Professional Conduct ended the four-decade era (1970-2009) in which the Code-based standards mandated adherence to the doctrine of zealous advocacy. Rather than urging zealous advocacy as the 1970 Code did, RPC 1.3[a] commands “reasonable diligence and promptness in representing a client.” ABA Model Rule 1.3 presents the same requirement. But while the ABA Comment to Rule 1.3 suggests that a lawyer act “with zeal in advocacy upon the client’s behalf,” the New York Comment on Rule 1.3 – with greater restraint – tells lawyers to “act with commitment and dedication to the interests of the client . . .” and makes no reference to “zeal.”

Commenting in the New York Law Journal on the history of Rule 1.3, one writer in 2011 reflected: “It appears that the deletion of the words ‘with zeal’ was not inadvertent.”[xlviii] Omission of even the words “zeal” and “zealous” from the new regulatory regime signaled that the chief justice of the Court of Appeals and the Joint Committee of the Appellate Division – made up of the four presiding justices responsible for the quasi-legislative code governing lawyer conduct – intended to eliminate this doctrine from the professional standards regulating lawyers.[xlix]

While the adoption of the Rules of Professional Conduct in 2009 reduced or eliminated reliance on the zealous advocacy doctrine, the vestiges of the doctrine continue to fuel a debate about whether lying or otherwise presenting false evidence to the court is ever permissible.

Monroe Freedman and Candor to the Tribunal: ‘The Ultra-Adversarial Norm’

In an article published in 2006, Freedman took the position that there are circumstances that “can require a lawyer to make a false statement to a court or to a third person, or to engage in other conduct involving dishonesty, fraud, deceit or misrepresentation.”[l] . . . . We disagree with the approach taken by Freedman, who deservedly has been characterized as a “legal ethics giant.”[lv] Freedman’s justification for “lying to judges,” part of the title of his 2006 article, presents a good reason for discarding whatever is left of the zealous advocacy doctrine.

Freedman acknowledges that the rule prohibiting a lawyer from making a “false statement of fact to a court” is among the ethical strictures “that are unquestionably sound and desirable.”[lvi] Yet he finds a basis for violating the rule barring counsel from making a false statement to a court. “My argument here . . . is that zealous representation – ‘entire devotion to the interests of the client’ – may sometimes require the lawyer to violate other disciplinary rules.”[lvii] But neither the RPC nor the penal law allow a lawyer to make false statements to the court or to defy a court order for any reason even under the circumstances stated in Freedman’s hypothetical.

Freedman considers a situation in which a judge requires counsel to comment on the client’s culpability. “Did he do it, or didn’t he?”[lviii] By presenting this question, “the judge has improperly placed the lawyer in the position of violating confidentiality and incriminating her client.”[lix] Imagining a plausible but evasive answer, “. . . I have no doubt that this defendant is not guilty.” Freedman opines that such a response would “constitute a false statement of fact to the court.”[lx] Yet Freedman approves of mendacity in this circumstance.

Applying RPC 3.3 to Professor Freedman’s Defense of Lying: Destroying ‘the Duty of Confidentiality’

The Rules of Professional Conduct specifically prohibits the dishonesty to the court that Freedman excused. RPC 3.3[a][1] forbids a lawyer from “knowingly mak[ing] a false statement of fact or law to a tribunal.” RPC 3.3[a][3] extends the prohibition on false statements spoken by the lawyer in court to include false evidence knowingly offered by counsel. As Roy Simon points out in his treatise on New York ethics law: “Notably, the duty not to ‘make’ a false statement is not limited to a statement of ‘material’ fact . . . Thus, even a small white lie to a tribunal is prohibited by the literal language of Rule 3.3[a][1] . . . The point here is that the opening clause of Rule 3.3[a][1] articulates a very broad ‘thou shall not.’”[lxi]

If a New York judge in Freedman’s hypothetical ordered (not just asked) counsel to disclose confidential information, there would be no question about the lawyer “violating confidentiality” because the Rules of Professional Conduct allow – and actually require – such disclosure “when permitted or required under these Rules or to comply with other law or court order.”[lxii] As Simon observes: “Once a court issues a final order requiring disclosure, a lawyer can no longer claim protection of Rule 1.6. In other words, a final court order destroys the duty of confidentiality.”[lxiii]

In any event, the confidentiality protection offered by RPC 1.6 does not provide a safe harbor for offering a false statement to the court in violation of RPC 3.3. As stated in RPC 3.3[c]: “The duties stated in paragraphs [a] [prohibiting a counsel from making a false statement the tribunal] and [b] [requiring counsel to take “remedial measures in response to fraud” tribunal by a “person”] apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. As Simon points out, under this narrow exception, candor trumps confidentiality: “Rule 3.3(c) is unique. It is the only rule in the New York Rules of Professional Conduct that expressly requires a lawyer to violate the sacrosanct duty of confidentiality expressed in Rule 1.6.”[lxiv]

In short, a mendacious lawyer cannot rely on the principle of confidentiality when a court orders disclosure of information covered by RPC 3.3. Nor does the wrongfulness of the court’s order undermine the court’s authority to require compliance. Consider the Court of Appeals decision in Balter v. Regan, in which defense counsel defied the order of the trial court to proceed to trial irrespective of a conflict of interest identified by counsel.[lxv] In an Article 78 proceeding, counsel challenged the trial court’s adjudication of contempt.

The finding of contempt was upheld in the Appellate Division and affirmed by a divided Court of Appeals, which disregarded the merits of counsel’s argument about the conflict of interest. “However misguided and erroneous the court’s order may have been, petitioner was not free to disregard it and decide for himself the manner in which to proceed.”[lxvi]

Citing Balter, in 2023, a trial court ruled that “[a] good faith belief that a court order is improper or unlawful will not render the order unlawful nor will it excuse willful disobedience.”[lxvii]

In Freedman’s hypothetical, as noted above, counsel protects the client’s confidentiality rights by deceitfully answering the question of the court about the culpability of the accused. Recall that the defendant would not be protected by RPC 1.6 – the basic confidentiality rule – because RPC 1.6[b][6] creates an exception to the basic rule when disclosure is mandated by court order.

Both Penal Law Section 215.50[3] and Judiciary Law Section 750[3] prohibit purposeful noncompliance with a court order. Thus, neither the statutory law nor the Rules of Professional Conduct insulate counsel from consequences when the lawyer thwarts a judicial order mandating disclosure of confidential information.

Of course, counsel may attempt to resist such an order by filing an Article 78 petition or seeking an order suppressing the introduction of confidential information at trial or asking for a hearing on the propriety of the court’s order. But at the end of the day, as the New York State Court of Appeals held in Balter v. Regan, an improper order is still an order.[lxviii]

Because ethical rules do not protect lawyers who engage in dishonesty, Freedman declared an intention to “venture beyond [emphasis supplied] the words of the ethical rules themselves, into the larger context of the lawyer’s role.”[lxix]

Freedman found authority to venture beyond the rules by proposing that there are certain sacrosanct principles – such as the lawyer’s responsibility not to disclose information obtained from the client – with respect to which “the judge has no right to ask” a question.[lxx] Leaving aside the question about whether a judge possesses a “right” to issue an order invading a party’s confidentiality interests, it is clear that a litigant has no “right” to violate such an order. The Balter decision laid to rest any claim that a litigant may defy a court order thought to be improper.

Freedman found support for his “overzealous” defense of client rights by pointing to the “Scope” section of the Rules of Professional Conduct. The “Scope” section was not written by the Joint Committee of Appellate Division but rather is the product of the ABA and NYSBA. In their sections on scope, both the ABA Model Rules and the New York Rules of Professional Conduct offer the idea that rules should be interpreted in the context of broader principles. The scope section, Freedman avers, “tells us that the black-letter rules ‘do not . . . exhaust the moral and ethical considerations that should inform a lawyer,’ because ‘no worthwhile human activity can be completely defined by legal rules.’”[lxxi]

But the “moral and ethical considerations” referenced in the scope section of the preamble are not part of the rules approved by the joint committee and offer insufficient guidance to lawyers confronting the issue presented by Freedman. As Simon notes: “In effect, the Preamble and Scope are like the [NYSBA] Comments themselves, providing a gloss on the Rules but not setting forth obligations and prohibitions.”[lxxii] It is the black-letter law – the Rules of Professional Conduct – that governs when a lawyer deals with ethical issues.

Further, reliance on “moral and ethical considerations” – rather than the Rules of Professional Conduct– gives lawyers insufficient guidance as they conduct the daily practice of law. Some lawyers might believe that the doctrine of zealous advocacy allows or requires departure from RPC 3.3. Others might regard the rule as inviolable, to be rigidly considered without thought about “moral and ethical considerations.” Still a third camp might elect to adhere to the rule through the lens of those “considerations.”

The rules promote more uniform – and thus more just – results because rule-compliant lawyers are all “singing from the same hymn book” and are thus more likely to make decisions in line with professional norms. Lawyers who adhere to the zealous advocacy doctrine run the risk of making decisions not informed by the Rules of Professional Conduct. Decision-making based on personally held “moral and ethical considerations” – as Freedman urged – risks scattershot outcomes driven by each lawyer’s own sense of what is moral and ethical. And that’s like a baseball game where the right-field foul line shifts at the discretion of the hitter.

The Danger of Zealous Advocacy: Need for ‘Client Protection’

The danger of the zealous advocacy doctrine is the risk that it may be perceived as invitation to lawless or unethical advocacy, a perception that undermines the standing of the legal profession. “Since time immemorial slick gamesmanship has often been the bane of the legal profession, and anecdotal versions of shifty lawyering still threaten to bring the profession into disrepute.”[lxxiii] The media generally puts lawyers in an unflattering light. “Unfortunately, other than Jack McCoy [the DA in the television series Law and Order], lawyers are today routinely presented in caricature form in popular culture.”[lxxiv] A profession requiring a “lawyer’s fund for client protection” needs to burnish its public image. That clients require state-sponsored “protection” from their lawyers is a chilling notion. The legal profession needs to protect itself by closing the book on the zealous advocacy doctrine.

The Zealous Advocacy Doctrine Lingers: Still Expecting ‘Zealous Advocacy’

Oddly, the zealous advocacy doctrine lives on in New York cases even after its unequivocal elimination from the state’s regulatory scheme governing lawyers. A Westlaw search (conducted in June 2024) for “zealous advocacy” or “zealous representation” produced a total 146 cases. Of that number, 80 cases were decided after the effective date of the Rules of Professional Conduct at a time when the zealous advocacy doctrine was untethered to the current standards of lawyer conduct.

Consider this example of the persistence of the zealous advocacy doctrine in New York courts. The doctrine recently emerged in a trial court’s four-page decision in a high-profile criminal case where the judge, concerned about dilatory conduct by the defense, sought to deter unauthorized motion practice (and other misconduct). “This Court emphasizes that it hopes for and fully expects zealous advocacy from counsel as well as spirited contribution from witnesses and parties alike. Nonetheless, the Court expects that the line between zealous advocacy and willful disregard of its orders will not be crossed.”[lxxv]

Such routine references to the zealous advocacy doctrine make it seem that the doctrine continues to enjoy the imprimatur of New York bar regulators, as it did before promulgation of the Rules of Professional Conduct in 2009. References to the doctrine draw the bar’s attention away from the detailed regulatory regime imposed by the joint committee – and explained in the NYSBA Comments – and toward an amorphous idea born in England during a contest for the crown.

Conclusion: ‘Hyperbolic Nonsense’

At a time when the rule of law is threatened, it makes sense for the bench and bar to focus on the New York Rules of Professional Conduct and avoid reference to a doctrine that is not recognized by standards of attorney conduct in this state.

Brougham’s claimed license to ignore every interest except the interest of the client flies in the face of reality: lawyers work in the justice system and they also work for the justice system. Notwithstanding the fame and respect Brougham earned as a result of Queen Caroline’s trial, he has been condemned for uttering “hyperbolic nonsense” during his speech on behalf of the queen.[lxxvi]

Freedman’s claimed license to lie to the court when the circumstances demand ignores the need to make honest communications the coin of the realm, one that rejects the lie as legal tender even when packaged as zealous advocacy.[lxxvii]

Both Brougham and Freedman were eminent lawyers, well known, supremely accomplished and hugely admired. Their pioneering theories have stimulated much scholarly debate. But, as it relates to zeal in advocacy as a model for lawyering, they were wrong.

Brad Rudin, a former prosecutor and defense lawyer, is retired from the practice of law. He and Betsy Hutchings are alums of the New York City Legal Aid Society and have previously published articles on New York legal ethics. Opinions are solely those of the authors and do not reflect that of NYSBA or its leadership. This article appears in a current issue of the New York Criminal Justice Section Reporter, the publication of the Criminal Justice Section. For more information, please visit

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(a) A lawyer shall not knowingly reveal confidential information, as defined in this Rule, or use such information to the disadvantage of a client or for the advantage of the lawyer or a third person, unless:

(1) the client gives informed consent, as defined in Rule 1.0(j);
(2) the disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community; or
(3) the disclosure is permitted by paragraph (b).

“Confidential information” consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential. “Confidential information” does not ordinarily include (i) a lawyer’s legal knowledge or legal research or (ii) information that is generally known in the local community or in the trade, field or profession to which the information relates.

(b) A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime;
(3) to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be relied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud;
(4) to secure legal advice about compliance with these Rules or other law by the lawyer, another lawyer associated with the lawyer’s firm or the law firm;
(5) (i) to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct; or (ii) to establish or collect a fee; or (6) when permitted or required under these Rules or to comply with other law or court order.

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure or use of, or unauthorized access to, information protected by Rules 1.6, 1.9(c), or 1.18(b).

Comments:

Scope of the Professional Duty of Confidentiality
[1] This Rule governs the disclosure of information protected by the professional duty of confidentiality. Such information is described in these Rules as “confidential information” as defined in this Rule. Other rules also deal with confidential information. See Rules 1.8(b) and 1.9(c)(1) for the lawyer’s duties with respect to the use of such information to the disadvantage of clients and former clients; Rule 1.9(c)(2) for the lawyer’s duty not to reveal information relating to the lawyer’s prior representation of a former client; Rule 1.14(c) for information relating to representation of a client with diminished capacity; Rule 1.18(b) for the lawyer’s duties with respect to information provided to the lawyer by a
prospective client; Rule 3.3 for the lawyer’s duty of candor to a tribunal; and Rule 8.3(c) for information gained by a lawyer or judge while participating in an approved lawyer assistance program.

[2] A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, or except as permitted or required by these Rules, the lawyer must not knowingly reveal information gained during and related to the representation, whatever its source. See Rule 1.0(j) for the definition of informed consent. The lawyer’s duty of confidentiality contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer, even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Typically, clients come to lawyers to determine their rights and what is, in the complex of
laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is thereby upheld.

[3] The principle of client-lawyer confidentiality is given effect in three related bodies of law: the attorney-client privilege of evidence law, the work-product doctrine of civil procedure and the professional duty of confidentiality established in legal ethics codes. The attorney-client privilege and the work-product doctrine apply when compulsory process by a judicial or other governmental body seeks to compel a lawyer to testify or produce information or evidence concerning a client. The professional duty of client-lawyer confidentiality, in contrast, applies to a lawyer in all settings and at all times, prohibiting the lawyer from disclosing confidential information unless permitted or required by these Rules or to comply with other law or court order. The confidentiality duty applies not only to matters communicated in confidence by the client, which are protected by the attorney-client privilege, but also to all information gained during and relating to the representation, whatever its source. The confidentiality duty, for example, prohibits a lawyer from volunteering confidential information to a friend or to any other person except in compliance with the provisions of this Rule, including the Rule’s reference to other law that may compel disclosure. See Comments [12]-[13]; see also Scope.

[4] Paragraph (a) prohibits a lawyer from knowingly revealing confidential information as defined by this Rule. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal confidential information but could reasonably lead to the discovery of such information by a third person. A lawyer’s use of a hypothetical to discuss
issues relating to the representation with persons not connected to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client.

[4A] Paragraph (a) protects all factual information “gained during or relating to the representation of a client.” Information relates to the representation if it has any possible relevance to the representation or is received because of the representation. The accumulation of legal knowledge or legal research that a lawyer acquires through practice ordinarily is not client information protected by this Rule. However, in some circumstances, including where the client and the lawyer have so agreed, a client may have a proprietary interest in a particular product of the lawyer’s research. Information that is generally known in the local community or in the trade, field or profession to which the information relates is also not protected, unless the client and the lawyer have otherwise agreed. Information is not “generally known” simply because it is in the public domain or available in a public file.

Use of Information Related to Representation
[4B] The duty of confidentiality also prohibits a lawyer from using confidential information to the advantage of the lawyer or a third person or to the disadvantage of a client or former client unless the client or former client has given informed consent. See Rule 1.0(j) for the definition of “informed consent.” This part of paragraph (a) applies when information is used to benefit either the lawyer or a third person, such as another client, a former client or a business associate of the lawyer. For
example, if a lawyer learns that a client intends to purchase and develop several parcels of land, the lawyer may not (absent the client’s informed consent) use that information to buy a nearby parcel that is expected to appreciate in value due to the client’s purchase, or to recommend that another client buy the nearby land, even if the lawyer does not reveal any confidential information. The duty also prohibits disadvantageous use of confidential information unless the client gives informed consent, except as permitted or required by these Rules. For example, a lawyer assisting a client in purchasing a parcel of land may not make a competing bid on the same land. However, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client, even to the disadvantage of the former client, after the clientlawyer relationship has terminated. See Rule 1.9(c)(1).

Authorized Disclosure
[5] Except to the extent that the client’s instructions or special circumstances limit that authority, a lawyer may make disclosures of confidential information that are impliedly authorized by a client if the disclosures (i) advance the best interests of the client and (ii) are either reasonable under the circumstances or customary in the professional community. In some situations, for example, a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter. In addition, lawyers in a firm may, in the course of the firm’s practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers. Lawyers are also impliedly authorized to reveal information about a client with diminished capacity when necessary to take protective action to safeguard the client’s interests. See Rules 1.14(b) and (c).

Disclosure Adverse to Client
[6] Although the public interest is usually best served by a strict rule requiring lawyers to preserve the confidentiality of information relating to the representation of their clients, the confidentiality rule is subject to limited exceptions that prevent substantial harm to important interests, deter wrongdoing by clients, prevent violations of the law, and maintain the impartiality and integrity of judicial proceedings. Paragraph (b) permits, but does not require, a lawyer to disclose information relating to the representation to accomplish these specified purposes.

[6A] The lawyer’s exercise of discretion conferred by paragraphs (b)(1) through (b)(3) requires consideration of a wide range of factors and should therefore be given great weight. In exercising such discretion under these paragraphs, the lawyer should consider such factors as: (i) the seriousness of the potential injury to others if the prospective harm or
crime occurs, (ii) the likelihood that it will occur and its imminence, (iii) the apparent absence of any other feasible way to prevent the potential injury, (iv) the extent to which the client may be using the lawyer’s services in bringing about the harm or crime, (v) the circumstances under which the lawyer acquired the information of the client’s intent or prospective course of action, and (vi) any other aggravating or extenuating circumstances. In any case, disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to prevent the threatened harm or crime. When a lawyer learns that a client intends to pursue or is pursuing a course of conduct that would permit disclosure under paragraphs (b)(1), (b)(2) or (b)(3), the lawyer’s initial duty, where practicable, is to remonstrate with the client. In the rare situation in which the client is reluctant to accept the lawyer’s advice, the lawyer’s threat of disclosure is a measure of last resort that may persuade the client. When the lawyer reasonably believes that the client will carry out the threatened harm or crime, the lawyer may disclose confidential information when permitted by paragraphs (b)(1), (b)(2) or (b)(3). A lawyer’s permissible disclosure under paragraph (b) does not waive the client’s attorney-client privilege; neither the lawyer nor the client may be forced to testify about communications protected by the privilege, unless a tribunal or body with authority to compel testimony makes a determination that the crime-fraud exception to the privilege, or some other exception, has been satisfied by a party to the proceeding. For a lawyer’s duties when representing an organizational client engaged in wrongdoing, see Rule 1.13(b).

[6B] Paragraph (b)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial risk that a person will suffer such harm at a later date if
the lawyer fails to take action necessary to eliminate the threat. Thus, a lawyer who knows that a client has accidentally discharged toxic waste into a town’s water supply may reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer’s disclosure is necessary to eliminate the threat or reduce the number of victims. Wrongful execution of a person is a life-threatening and imminent harm under paragraph (b)(1) once the person has been convicted and sentenced to death. On the other hand, an event that will cause property damage but is unlikely to cause substantial bodily harm is not a present and substantial risk under paragraph (b)(1); similarly, a remote possibility or small statistical likelihood that any particular unit of a mass-distributed product will cause death or substantial bodily harm to unspecified persons over a period of years does not satisfy the element of reasonably certain death or substantial bodily harm under the exception to the duty of confidentiality in paragraph (b)(1). 

[6C] Paragraph (b)(2) recognizes that society has important interests in preventing a client’s crime. Disclosure of the client’s intention is permitted to the extent reasonably necessary to prevent the crime. In exercising discretion under this paragraph, the lawyer should consider such factors as those stated in Comment [6A].

[6D] Some crimes, such as criminal fraud, may be ongoing in the sense that the client’s past material false representations are still deceiving new victims. The law treats such crimes as continuing crimes in which new violations are constantly occurring. The lawyer whose services were involved in the criminal acts that constitute a continuing crime may reveal the client’s refusal to bring an end to a continuing crime, even though that disclosure may also reveal the client’s past wrongful acts, because refusal to end a continuing crime is equivalent to an intention to commit a new crime. Disclosure is not permitted under paragraph (b)(2), however, when a person who may have committed a crime employs a new lawyer for
investigation or defense. Such a lawyer does not have discretion under paragraph (b)(2) to use or disclose the client’s past acts that may have continuing criminal consequences. Disclosure is permitted, however, if the client uses the new lawyer’s services to commit a further crime, such as obstruction of justice or perjury.

[6E] Paragraph (b)(3) permits a lawyer to withdraw a legal opinion or to disaffirm a prior representation made to third parties when the lawyer reasonably believes that third persons are still relying on the lawyer’s work and the work was based on “materially inaccurate information or is being used to further a crime or fraud.” See Rule 1.16(b)(1), requiring the lawyer to withdraw when the lawyer knows or reasonably should know that the representation will result in a violation of law. Paragraph (b)(3) permits the lawyer to give only the limited notice that is implicit in withdrawing an opinion or representation, which may have the collateral effect of inferentially revealing confidential information. The lawyer’s
withdrawal of the tainted opinion or representation allows the lawyer to prevent further harm to third persons and to protect the lawyer’s own interest when the client has abused the professional relationship, but paragraph (b)(3) does not permit explicit disclosure of the client’s past acts unless such disclosure is permitted under paragraph (b)(2).

[7] [Reserved.]
[8] [Reserved.]

[9] A lawyer’s confidentiality obligations do not preclude a lawyer from securing confidential legal advice about compliance with these Rules and other law by the lawyer, another lawyer in the lawyer’s firm, or the law firm. In many situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph (b)(4) permits such disclosure because of the importance of a
lawyer’s compliance with these Rules, court orders and other law.

[10] Where a claim or charge alleges misconduct of the lawyer related to the representation of a current or former client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. Such a claim can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, such as a person claiming to have been defrauded by the lawyer and client acting together or by the lawyer acting alone. The lawyer may respond directly to the person who has made an accusation that permits disclosure, provided that the lawyer’s response complies with Rule 4.2 and Rule 4.3, and
other Rules or applicable law. A lawyer may make the disclosures authorized by paragraph (b)(5) through counsel. The right to respond also applies to accusations of wrongful conduct concerning the lawyer’s law firm, employees or associates.

[11] A lawyer entitled to a fee is permitted by paragraph (b)(5) to prove the services rendered in an action to collect it. This aspect of the rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary. 

[12] Paragraph (b) does not mandate any disclosures. However, other law may require that a lawyer disclose confidential information. Whether such a law supersedes Rule 1.6 is a question of law beyond the scope of these Rules. When disclosure of confidential information appears to be required by other law, the lawyer must consult with the client to the extent required by Rule 1.4 before making the disclosure, unless such consultation would be prohibited by other law. If the lawyer concludes that other law supersedes this Rule and requires disclosure, paragraph (b)(6) permits the lawyer to make such disclosures as are necessary to comply with the law.

[13] A tribunal or governmental entity claiming authority pursuant to other law to compel disclosure may order a lawyer to reveal confidential information. Absent informed consent of the client to comply with the order, the lawyer should assert on behalf of the client nonfrivolous arguments that the order is not authorized by law, the information sought is protected against disclosure by an applicable privilege or other law, or the order is invalid or defective for some other reason. In the event of an adverse ruling, the lawyer must consult with the client to the extent required by Rule 1.4 about the possibility of an appeal or further challenge, unless such consultation would be prohibited by other law. If such review is not sought or is unsuccessful, paragraph (b)(6) permits the lawyer to comply with the order.

[14] Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified in paragraphs (b)(1) through (b)(6). Before making a disclosure, the lawyer should, where practicable, first seek to persuade the client to take suitable action to obviate the need for disclosure. In any
case, a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose, particularly when accusations of wrongdoing in the representation of a client have been made by a third party rather than by the client. If the disclosure will be made in connection with an adjudicative proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know the information, and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.

[15] Paragraph (b) permits but does not require the disclosure of information relating to a client’s representation to accomplish the purposes specified in paragraphs (b)(1) through (b)(6). A lawyer’s decision not to disclose as permitted by paragraph (b) does not violate this Rule. Disclosure may, however, be required by other Rules or by other law. See
Comments [12]-[13]. Some Rules require disclosure only if such disclosure would be permitted by paragraph (b). E.g., Rule 8.3(c)(1). Rule 3.3(c), on the other hand, requires disclosure in some circumstances whether or not disclosure is permitted or prohibited by this Rule.

Withdrawal
[15A] If the lawyer’s services will be used by the client in materially furthering a course of criminal or fraudulent conduct, the lawyer must withdraw pursuant to Rule 1.16(b)(1). Withdrawal may also be required or permitted for other reasons under Rule 1.16. After withdrawal, the lawyer is required to refrain from disclosing or using information protected by Rule 1.6, except as this Rule permits such disclosure. Neither this Rule, nor Rule 1.9(c), nor Rule 1.16(e) prevents the lawyer from giving notice of the fact of withdrawal. For withdrawal or disaffirmance of an opinion or representation, see paragraph (b)(3) and Comment [6E]. Where the client is an organization, the lawyer may be in doubt whether the organization will actually carry out the contemplated conduct. Where necessary to guide conduct in connection with this Rule, the lawyer may,
and sometimes must, make inquiry within the organization. See Rules 1.13(b) and (c).

Duty to Preserve Confidentiality
[16] Paragraph (c) imposes three related obligations. It requires a lawyer to make reasonable efforts to safeguard confidential information against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are otherwise subject to the
lawyer’s supervision. See Rules 1.1, 5.1 and 5.3. Confidential information includes not only information protected by Rule 1.6(a) with respect to current clients but also information protected by Rule 1.9(c) with respect to former clients and information protected by Rule 1.18(b) with respect to prospective clients. Unauthorized access to, or the inadvertent or unauthorized disclosure of, information protected by Rules 1.6, 1.9, or 1.18, does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the unauthorized access or disclosure. Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to: (i) the sensitivity of the information; (ii)
the likelihood of disclosure if additional safeguards are not employed; (iii) the cost of employing additional safeguards; (iv) the difficulty of implementing the safeguards; and (v) the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or software excessively difficult to use). A client may require the lawyer to implement special security measures not required by this Rule, or may give informed consent to forgo security measures that would otherwise be required by this Rule. For a lawyer’s duties when sharing information with nonlawyers inside or outside the lawyer’s own firm, see Rule 5.3, Comment [2].

[17] When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. Paragraph (c) does not ordinarily require that the lawyer use special security measures if the method of communication affords a reasonable expectation of confidentiality. However, a lawyer may be required to take specific steps to safeguard a client’s information to comply with a court order (such as a protective order) or to comply with other law (such as state and federal laws or court rules that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information). For example, a protective order may extend a high level of protection to documents marked “Confidential” or “Confidential—Attorneys’ Eyes Only”; the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) may require a lawyer to take specific precautions with respect to a client’s or adversary’s medical records; and court rules may require a lawyer to block out a client’s Social Security number or a minor’s name when electronically filing papers with the court. The specific requirements of court orders, court rules, and other laws are beyond the scope of these Rules.

Lateral Moves, Law Firm Mergers, and Confidentiality
[omitted]

“Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated information adequate for the person to make an informed decision, and after the lawyer has adequately explained to the person the material risks of the proposed course of conduct and reasonably available alternatives.

This is a story about an innocent man who languished in prison for 26 years while two attorneys who knew he was innocent stayed silent. As correspondent Bob Simon reported earlier this year, they did so because they felt they had no choice.

Alton Logan was convicted of killing a security guard at a McDonald's in Chicago in 1982. Police arrested him after a tip and got three eyewitnesses to identify him. Logan, his mother and brother all testified he was at home asleep when the murder occurred. But a jury found him guilty of first degree murder.

Now new evidence reveals that Logan did not commit that murder, something that was not new to those two attorneys, who knew it all along but say they couldn't speak out until now.

Alton Logan's story cuts to the core of America's justice system.

Simon met Alton Logan in prison, where he's spent almost half of his life.

Asked if he still counts the months and days, Logan told Simon, "There's no need to count the months and the days. Just count the years."

Logan said that during the first five or six years he was "consumed" by anger. "Then I come to the realization that 'Why be angry over something you can't control?'"

Logan, who maintains he didn't commit the murder, thought they were "crazy" when he was arrested for the crime.

Attorneys Dale Coventry and Jamie Kunz knew Logan had good reason to think that, because they knew he was innocent. And they knew that because their client, Andrew Wilson, who they were defending for killing two policemen, confessed to them that he had also killed the security guard at McDonald's - the crime Logan was charged with.

"We got information that Wilson was the guy and not Alton Logan. So we went over to the jail immediately almost and said, 'Is that true? Was that you?' And he said, 'Yep it was me,'" Kunz recalled.

"He just about hugged himself and smiled. I mean he was kind of gleeful about it. It was a very strange response," Kunz said, recalling how Wilson had reacted.

"How did you interpret that response?" Simon asked.

"That it was true and that he was tickled pink," Kunz said.

"He was pleased that the wrong guy had been charged. It was like a game and he'd gotten away with something. But there was just no doubt whatsoever that it was true. I mean I said, 'It was you with the shotgun-you killed the guy?' And he said, 'Yes,' and then he giggled," Coventry added.

The problem was the killer was their client. So, legally, they had to keep his secret even though an innocent man was about to be tried for murder.

"I know a lot of people who would say, 'Hey if the guy's innocent you've got to say so. You can't let him rot because of that,'" Simon remarked.

"Well, the vast majority of the public apparently believes that, but if you check with attorneys or ethics committees or you know anybody who knows the rules of conduct for attorneys, it's very, very clear-it's not morally clear-but we're in a position to where we have to maintain client confidentiality, just as a priest would or a doctor would. It's just a requirement of the law. The system wouldn't work without it," Coventry explained.

So that was the dilemma. They couldn't speak out, they felt, but how could they remain silent?

Asked if they contemplated doing something about it, Coventry told Simon, "We wrote out an affidavit. We made an affidavit that we had gotten information through privileged sources, that Alton Logan was not in fact guilty of killing the officer, that in fact somebody else did it."

"We wanted to put in writing, to memorialize, you know, to get a notarized record of the fact that we had this information back then so that if, you know, 20 years later, 10 years later, if something allowed us to talk, as we are now, we could at least we we'd at least have an answer to someone who says, 'You're just making this up now,'" Kunz added.

They sealed the affidavit in an envelope and put the envelope in a lockbox to keep it safe under Coventry's bed.

While the attorneys kept silent about Logan's innocence, a jury convicted him of murder. Then the jurors had to decide whether to sentence him to death.

"I was in court the day they were dealing with the death penalty," Coventry recalled.

Asked why he went to court, he told Simon, "'Cause I had this information that this innocent guy was up there and the jury was deciding whether they're gonna kill him or not."

Coventry said his heart was racing when he went into the courtroom. "It was just creepy. Knowing I was looking at the jurors thinking, 'My God, they're going to decide to kill the wrong guy.'"

In the end, the jurors spared Logan's life.

"It was a 10 to 2 vote. Ten for, two against. Two individuals saved my life," Logan explained.

And the jurors saved Kunz and Coventry from coming forward. "We thought that somehow we would stop at least the execution. We weren't gonna let that go," Coventry told Simon.

"But instead he was sentenced to life in prison, and you did not do anything?" Simon asked.

"Right," Kunz said.

"So it's just okay to prevent his execution if necessary, but it was not okay to prevent his going to prison for the rest of his life?" Simon asked.

"Morally there's very little difference and were torn about that, but in terms of the canons of ethics, there is a difference, you can prevent a death," Coventry replied.

"But the minute he was not sentenced to death, the minute he was sentenced to life in prison, you decided to do nothing?" Simon asked.

"Yes," Kunz said. "I can't explain it. I don't know why that made the difference but I know it did."

"There is no difference between life in prison and a death penalty. None whatsoever. Both are a sentence of death," Logan told Simon.

Logan said while he could sympathize with the attorneys' problem of not being able to speak up, he couldn't understand it. "'Cause if you know this is an innocent person, why would you allow this person to be prosecuted, convicted, sent to prison for all these years?" he asked.

"What did you do to see if there might be some loophole to get everyone out of this fix?" Simon asked the attorneys.

"I researched the ethics of attorney-client privilege as much as I could. I contacted people who are involved in making those determinations. I know Jamie did the same thing," Coventry said.

"I could not figure out a way, and still cannot figure out a way, how we could have done anything to help Alton Logan that would not have put Andrew Wilson in jeopardy of another capital case," Kunz added.

"Couldn't you have leaked it to somebody? To a reporter, to an administrator, to the governor, to somebody?" Simon asked.

"The only thing we could have leaked is that Andrew Wilson confessed to us. And how could we leak that to anybody without putting him in jeopardy?" Kunz replied. "It may cause us to lose some sleep. But, but I lose more sleep if I put Andrew Wilson's neck in the in the noose."

"He was guilty and Logan was not. So, yes his head should be in the noose. And Logan should go free. It's perfectly obvious to somebody who isn't a lawyer," Simon pointed out. "Andrew Wilson was guilty, was he not?"

"Yes. And that's up to the system to decide. It's not up to me as his lawyer to decide that he was guilty and so he should be punished and Logan should go free," Kunz said.

"Do you think you might have been disbarred for doing that, for violating attorney-client privilege?" Simon asked.

"I don't think I considered that as much as I considered my responsibility to my client. I was very concerned to protect him," Coventry explained.

"But here is a case where two men, you two were caught up in this bind. And chose to let a man rot away in jail," Simon remarked.

"It seems that way. But had we come forward right away, aside from violating our own client's privilege, and putting him in jeopardy, would the information that we had have been valued? Would it have proved anything?" Coventry replied.

Probably not, they say, because as a violation of attorney-client privilege, it would never have been allowed in court. They insist that for them, there was no way out.

"In terms of my conscience, my conscience is that I did the right thing. Do I feel bad about Logan? Absolutely I feel bad about Logan," Coventry admitted.

The attorneys say they were so tormented over Logan's imprisonment that they convinced Wilson to let them reveal that Wilson was the real killer after Wilson's death. Late last year, Wilson died. The two attorneys finally took their affidavit out of the lockbox, and they called Logan's lawyer, pubic defender Harold Winston.

Winston had already been trying to get Logan a new trial. He'd found two eyewitnesses who swore Logan was not the killer. Now, with Kunz and Coventry's affidavit, he thinks Logan will finally go free.

"I know the attorney general's office of Illinois is considering this. And I have a lot of respect for that office," Winston said. "And I'm hoping they will come to the right conclusion, that a mistake has been made. And if they do that, he would go free."

And even though Winston represents Alton Logan, he agrees the two attorneys had to remain silent until Wilson died. "I wish there had been a way this could have come out earlier. Under the…Illinois ethics code, I think the only way would have been if Andrew Wilson had released his lawyers earlier," he explained.

"There may be other attorneys who have similar secrets that they're keeping. I don't wanna be too defensive but what makes this case so different, is that Dale and I came forward. And that Dale had the good sense to talk to Wilson before his death. And get his permission. 'If you die, can we talk?' Without that, we wouldn't be here today," Kunz said.

"See, I never stopped giving up hope. I've always believed that one day is gone-somebody's gonna come forth and tell the truth. But I didn't know when," Logan told Simon.

Asked what they would say to him if they were able to visit Logan in his cell, one of the attorneys said, "There's nothing you can say. Well, it's been difficult for us. But there's no comparison what so ever to what it's been for this poor guy."

"How has it been difficult for them?" Logan inquired.

"Alton, whether or not you can understand it, we've been hurting for you for 26 years," Kunz said. "How often did I think about it? Probably 250 times a year. I mean I thought about it regularly."

"Everything that was dear to me is gone," Logan, who missed his mother's funeral, told Simon.

His brothers Eugene and Tony told 60 Minutes they've shared Alton's pain, and they always knew that he was no killer. "My brother ain't got the nature to do nothin' like that in his soul. He ain't gonna take nobody else's life. We weren't raised like that," Tony said.

"Your brother is 54 now. Can he start again at the age of 54?" Simon asked.

"I think we gonna make it," Eugene said. "If he get from behind them bars, I'm gonna turn him back on to life. And we gonna live it together. We're gonna live it together."

But Alton Logan is still behind bars. "They are quick to convict but they are slow to correct they mistakes," he said.

"All I wanted was the truth. All I want is the truth," he said.

"And the truth shall set you free," Simon remarked.

"Yes it will," Logan said.

One month after this report had aired, the truth finally did set Alton Logan free. A judge, citing the new evidence, threw out his conviction and released Logan on just $1,000 bond. Illinois' attorney general will not appeal the ruling and is deciding whether to retry Alton or to simply drop the charges.

Produced By Robert Anderson and Casey Morgan

© 2008 CBS. All rights reserved.

Author’s Note: This article focuses on public defenders to highlight the unique standards and responsibilities associated with the provision of indigent defense representation and to acknowledge the current trend of institutional defenders commenting on client matters on social media. However, it is important to note that public defenders, private defense attorneys who take assigned cases, and criminal defense attorneys who only represent paying clients are all subject to the ethical obligations required by their state’s Rules of Professional Responsibility.

Every day the criminal legal system hauls poor and marginalized individuals through a process wrought with trauma, indignity, and abuse. Public defenders representing the criminally accused view their clients and the system from a unique vantage point: they bear witness to the human costs of a system that falls far short of its purported norms and ideals.

For the public defender who works within this reality day in and day out, fighting for each individual client might feel limited in its wider impact. Some public defenders have found that using online and social media platforms, such as Twitter, to provide insights and commentary on the human toll of the criminal legal system is one way to contribute to a deepened public awareness of the criminal legal system’s shortcomings. Indeed, while statistics about mass criminalization and mass incarceration provide powerful data points, narratives about the very real ways that clients experience being arrested, charged, processed and adjudicated can influence public debate and create momentum for both an individual case and more comprehensive systemic reform.

These online and social media narratives about clients can be powerful because they help to convey to unfamiliar audiences how the law is actually being experienced by those who have been marginalized because of their economic status, ability, race, sexual orientation, gender identity, or immigration status.[1] While this can be a compelling and effective approach, public defenders need to consider what their ethical obligations are and also what a strong sense of social and professional responsibility requires.[2] The deep racial disparities in the criminal legal system and the particularly unique vulnerabilities of the indigent criminal client necessitate that public defenders refrain from using client narratives in ways that may inadvertently oversimplify and exploit a client’s life experience. This article offers public defenders practical guidance on how to ethically and responsibly draw from their specialized knowledge and the experiences of their clients in order to expose systemic injustice.[3]

Key Ethical Considerations

The American Bar Association provides guidance for public defenders and all defense attorneys on the issue of making public comment about client cases and experiences through its Model Rules of Professional Conduct,[4] Criminal Justice Standards for the Defense Function,[5] and Formal Opinions.[6] As a preliminary matter, the ABA’s Standards for the Defense Function recognize that defense attorneys have an important role to play in reforming and improving the criminal legal system. According to Standard 4-1.2(e), “When inadequacies or injustices in the substantive or procedural law come to defense counsel’s attention, counsel should stimulate and support efforts for remedial action. Defense counsel should provide services to the community, including … public education. …”[7] As a result, defense attorneys are not simply tasked with representing an individual client. They are encouraged to advocate for reform of the legal process when particular injustices come to their attention through their legal representation.[8] However, public defenders’ fidelity to client is paramount and they must be mindful of their specific ethical obligations while working and commenting on reform issues.

The ABA, in directly addressing the issue of attorneys using online platforms to make public commentary that involves client information, has noted that“[w]hile technological advances have altered how lawyers communicate, and therefore may raise unexpected practical questions, they do not alter lawyers’ fundamental ethical obligations when engaging in public commentary.”[9] These key ethical obligations related to confidentiality, conflicts of interest, and trial publicity are discussed in greater detail below.

Confidentiality

Perhaps the most common ethical concern that arises when considering what public defenders and all defense attorneys may share about client experiences on social media and online platforms is the lawyer’s duty of confidentiality.[10] Model Rule of Professional Conduct 1.6 provides that: “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation,” or the disclosure is permitted by a specifically enumerated exception.[11]

Rule 1.6 recognizes the importance of confidentiality and limits the attorney’s ability to disclose information relating to the representation. Trust is considered a core value of the attorney-client relationship both while it is ongoing and after it has terminated.[12] In order for a defense attorney to represent a client effectively, the client must have assurances that the information shared, regardless of whether it is seemingly positive or clearly damaging, will be held in confidence.[13] Model Rule 1.6 “applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.”[14] Attorneys who fail to maintain confidences of client information when posting online can be subject to discipline.[15] The disciplinary case of a public defender working in Illinois serves as a cautionary tale about the bounds of sharing confidential client information online. In In the Matter of Kristine Ann Peshek, the attorney maintained a blog where she referenced specific information about clients such as their names, jail identification numbers, offenses, substance abuse history, and details about privileged conversations. The attorney ultimately received a suspension from the Illinois State Bar for violating the state’s Rules of Professional Conduct.

Defenders must conduct a review of their state ethical rules, particularly related to Rule 1.6 on confidentiality of client information, before discussing any details related to a client’s experience or case on social media. The ABA’s Model Rules and the rules of many states include publicly available information within the definition of confidential information, which significantly limits what can be communicated on social media outside of the rule’s limited exceptions.[16] However, not all states regard publicly available information as confidential, and being aware of the scope of the applicable state rule will be critical to knowing what is ethically permissible to post.[17] The scope of confidential information in Massachusetts varies from the standard established by the ABA. Confidential information does not ordinarily include “information about a client contained in a public record that has received widespread publicity.”

Obtaining informed consent and anonymizing a client story are two possible ways to resolve client confidentiality concerns. However, these approaches have their limitations. A defense attorney who engages in public commentary may not reveal information relating to client representation, unless the attorney receives informed consent from the client.[18] If the attorney thinks the client’s experience can be shared ethically for a clearly identified purpose, counsel will need to consider the appropriate time and manner to obtain informed consent. It is difficult to imagine making such a request of a client at the initial meeting or even while the case is still ongoing, particularly given concerns about attorney-client privilege and the power imbalance between attorney and client.

Further, describing client information as “hypothetical” does not necessarily circumvent violation of Rule 1.6(a). The Rules emphasize that the duty of confidentiality extends to disclosures that have the potential to reveal client confidences.[19] Comment 4 to Rule 1.6 specifically states that “[a] lawyer’s use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.”[20] This can be challenging in practice because depending on the nature of the locale, or if the defender is posting the information online with his or her own name and identity attached, there is always some measure of concern that the client’s identity could be discovered.[21]

Finally, lawyers assume responsibility for other persons who assist in representation of the client and are privy to client confidences. They must ensure that those parties do not inadvertently disclose client information.[22]

Conflict of Interest [you can skip this subsection]

A defense attorney using an online or social media platform to share client experiences must also consider the impact of conflicts of interest involving both current and former clients.[23] Loyalty to client and independent judgment are professional and ethical values at the core of conflict of interest obligations. MRPC 1.7 specifically addresses the risk that arises when a public defender’s representation becomes compromised by a conflict between the current client’s interests and counsel’s own personal interests.[24] An ethical violation occurs when there is a significant risk that the lawyer’s representation will be “materially limited” by a personal interest.[25] In contemporary society, many defenders may find themselves gaining recognition and professional opportunities because of their social media commentary on social justice issues. A personal interest that materially limits representation can take shape in ways that might not be immediately apparent.[26] The ABA Defense Standards caution: “Defense counsel should not allow the client’s representation to be adversely affected by counsel’s personal interest in potential media contacts or attention.”

Aside from concerns about a conflict involving a personal interest, an attorney using client information on social media must also consider whether the information being shared disadvantages a client.[27] Slight differences in the rules exist for former versus current clients. While public defenders have a bit more latitude in discussing the case and experience of a client whose case is resolved, there are still important ethical requirements. Defense attorneys may not use information about a former client to the client’s disadvantage, subject to a significant exception. MRPC 1.9(c)(1) instructs that an attorney who has formerly represented a client shall not “use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known.”[28] To put it differently, an attorney may use information to a past client’s disadvantage without informed consent as long as the information has been disclosed by some source other than the lawyer or the lawyer’s representatives and is “widely recognized by members of the public in the relevant geographic area.”[29] Importantly, client information that is publicly available is not automatically considered to be generally known.

For a current client, if the information is disadvantageous, a defender cannot post online about it without informed consent. This is distinct from the obligation to a former client, where a defense attorney may be able to use disadvantageous information without informed consent if the information is widely known and not just publicly available.

What is considered “disadvantageous to client” has been defined rather broadly.[30] For example, “in the context of a criminal case, even when an attorney wins an acquittal for the client, the attorney’s post-trial discussion of that case — even when done in a pro-client light — is often considered to work to the client’s disadvantage.”[31] A dramatic increase in publicity from a lawyer’s online discussion of the client’s case could embarrass the client or bring about unwanted notoriety, which amounts to a disadvantage.[32]

Trial Publicity [you can skip this subsection]

Also applicable to the question of defense attorneys sharing client information on social media is Model Rule 3.6, which addresses the issue of trial publicity and extrajudicial statements.[33] It states that “[a] lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”[34] This rule carves out a limitation that allows the lawyer to make a public communication for the purpose of mitigating any damaging statements made publicly about the client.[35]

In short, defense attorneys are encouraged to engage in law reform efforts and public commentary. While changes in technology have altered the way that lawyers communicate with the public, defense attorneys must consider the rules around confidentiality, conflicts of interest, and trial publicity when drawing from client experiences.

Free Speech Considerations

When public defenders engage in social media commentary about client experiences, concerns about the intersection of ethical obligations and First Amendment constitutional protections are inevitably raised. By entering the legal profession, attorneys tacitly agree to a system of regulation that frequently limits their speech rights. Public defenders, just like other licensed attorneys, can have their speech restricted and penalized by the local rules of their jurisdiction.[36] While lawyers do not completely shed all of their First Amendment rights upon becoming members of the bar, courts must often balance “the State’s interest in the regulation of a specialized profession against a lawyer’s First Amendment interest in the kind of speech that [is] at issue.”[37] It should go without saying that public defenders must take special care to ensure that the content of their tweets, posts, and blogs do not use or reveal confidential client information. First Amendment protections and ethical rules tend to converge when an attorney wants to discuss information that can be found in court documents or sources available to the public.

The case of Hunter v. Virginia State Bar ex rel. Third Dist. Comm. demonstrates the tensions between attorney ethics and First Amendment rights in regard to publicly available information.[38] Horace Frazier Hunter was charged with violating Virginia’s version of Rule 1.6 by using his legal blog to discuss embarrassing and likely detrimental information about his former clients without their consent.[39] Hunter’s blog posts, which he admitted had both marketing and public education purposes, identified clients by name and detailed information about charges of which his clients were later acquitted.[40] The Virginia State Bar argued that allowing attorneys to post about publicly available information related to their clients “could inhibit clients from freely communicating with their attorneys [] because it would undermine public confidence in the legal profession.”[41] Nonetheless, the Virginia Supreme Court, noting that “a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom,” found that the ethics concerns of discussing public information about a former client, even if potentially embarrassing, must yield to the attorney’s First Amendment protections.[42] While the Virginia Supreme Court’s decision takes a position contrary to that of many legal ethicists, it does signal a split being played out in courts and legal communities around the country.[43]

Social Responsibilities of Indigent Defense

The ethical rules provide critical guidance for lawyers seeking to discuss client information and experiences on social media. However, for all defense attorneys representing indigent clients, particularly those who proclaim a commitment to social and racial justice, the ethical obligations should be considered only a baseline for how to engage with client information online. When one considers the unique role that indigent defenders play in carrying out a constitutional mandate, as well as the deeply entrenched race and class disparities of the criminal legal system, it becomes apparent that additional caution and consideration are appropriate.

It is a fundamental principle of the legal profession that loyalty, mutual trust, and respect are among the core components of the attorney-client relationship. From the outset, public defenders must overcome several challenges in order to demonstrate loyalty and work toward a relationship of mutual trust and respect with their clients. While the Supreme Court’s decision in Gideon v. Wainwright, requiring that states provide an attorney to defendants who are unable to afford one, is of critical importance, criminally accused individuals may view their court-appointed counsel with a degree of suspicion.[44] From the accused’s perspective, the public defender is an attorney provided by the court whose salary comes from the very state initiating the prosecution against them. Additionally, while the accused has the right to counsel, they do not have the right to counsel of their choosing.[45] These cases illustrate the constraints indigent defendants face in the lack of choice of their right to counsel. Clients are in a position with very little agency: they are fighting against the power of the state with someone they may view as an institutional actor as their advocate. Public defenders must be particularly mindful that their engagement with a client’s experience on social media does not inadvertently exacerbate the perceived lack of agency that is endemic to a court-appointed relationship.

Relatedly, attorneys speak for and about their clients in legal settings on a regular basis. The familiarity they may have with a client’s case can create a sense of ownership over the stories and experiences that are connected to it. This phenomenon is further complicated when public defenders do not share the same racial or otherwise marginalized background as their clients. In these instances, the disparities between attorney and client may lead to concerns about the exploitation of a client’s trauma. Online and social media platforms do not often allow for nuanced, complex depictions of client narratives.[46] Public defenders must be careful to avoid defaulting to stereotypes and caricatures.

Social media has been proven to provide members of the public with unmediated, up-close access to legal information and experiences that can energize reform efforts. However, public defenders have a primary responsibility to the clients they serve and must always be mindful of avoiding the infliction of unnecessary harm on the individual in the name of progress for the whole.

To Tweet, Or Not to Tweet?

Public defenders can use their specialized knowledge, detailed professional experiences, and the experiences of their clients to effectively show systemic injustice and advocate for reform. However, it is important to keep in mind the ethical obligations as well as the social and moral responsibilities that come with providing legal representation to those without financial means.

Nothing prevents public defenders from using their professional knowledge to comment on a case when they or their organization is not part of the representation. Additionally, public defenders may generate the true hypothetical or composite example to share online. The ethical rules require that there be “no reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical.” However, the public defender should consider going even further to ensure that even the clients themselves would not be able to identify their own experience with changed details. Online platforms usually only allow for a snapshot of a person’s story or experience without all the complexity that human interactions carry. It is important to avoid having a client feel exploited or further marginalized even through a hypothetical account.

After reviewing the ethical rules related to confidentiality, conflicts of interest, and trial publicity, a public defender who still wants to use a client experience should consider and clearly identify the purpose of the client-related tweet, post, or blog. Who is the defender trying to influence and what result is being sought? Is there a specific, articulated outcome for the client or greater systemic understanding that can be realized?[47] Client experiences should not be shared on social media simply because they are interesting or satisfy voyeuristic tendencies. They should not be shared as a means of venting or blowing off steam. In this age of social media celebrity, public defenders must also honestly assess whether any part of recounting the story serves to benefit their own reputation or ego.[48] If it truly is not about the individual public defender, it is worth exploring whether a way exists to still achieve the articulated purpose by sharing the story anonymously.

The public defender should also be particularly mindful of the power dynamics at play when seeking informed consent and asking clients about sharing their experiences on social media. A client should always have a say and full information about what it means to have an experience shared online, even if it is for the purpose of effecting change. Informed consent in this context is certainly fraught, yet, one meaningful step would be to establish assurances that the client does not feel any implicit pressure to assist the attorney in the desire to share the client’s experience publicly. The public defender might communicate that the client is under no obligation to share anything about his or her story or experience and that the professional relationship will not be impacted by the client’s decision. Informed consent might include information about how the experience will be communicated and on what platforms, a willingness to remove or edit the online posting at the client’s request, and notice that some posts become the property of the social media platform and may be accessed and shared by other online users in ways not anticipated in the first instance.[49]

It is also important to investigate the impact of the assumptions, biases, and dominant narratives that are unwittingly being advanced. Is the narrative conveyed dignified and affirming? Could the experience be viewed as objectifying poverty or an exploitation of racial trauma? While the rules may permit sharing confidential information of a former client that is widely known, finding a way to do so that does not deepen client marginalization is critical. It is worth exploring whether a legally appropriate way exists to create space for former clients to collaborate with the defender or to speak in their own voices if they choose to. Communicating jointly with the former client or creating space highlights the dynamic process of informed consent, potentially reduces the power imbalance between lawyer and client, and may help reduce biases and disadvantages in the communication.

A public defender interested in social justice reform might also seek other parties that can convey the client’s experience in an authentic and effective way. Nothing precludes directing a willing former client to a sympathetic, informed third party to communicate an experience. Increasingly, court watch programs, journalists, and policy advocates observe in criminal court settings. These parties may be able to effectively and authentically identify and articulate cases and experiences that demonstrate systemic deficiencies without directly implicating the attorney-client relationship.[50]

Conclusion

Using social media to comment on systemic injustice and advance criminal legal reform is an important way for public defenders to proactively use their specialized knowledge. However, public defenders must be aware of the important client obligations required by their state’s Rules of Professional Responsibility. Further still, the unique social and racial justice considerations of indigent defense should prompt defenders to push beyond the ethical rules to develop social media practices that respect the agency and experiences of their clients.

© 2019, National Association of Criminal Defense Lawyers. All rights reserved.

About the Author

Nicole Smith Futrell is an Associate Professor at the City University of New York (CUNY) School of Law in Long Island City, New York, where she teaches Professional Responsibility and directs the Defenders Clinic. Prior to teaching, she was a Staff Attorney at the Bronx Defenders.

Professor Nicole Smith Futrell

City University of New York School of Law

Long Island City, New York

718-340-4541

nicole.smith@law.cuny.edu

www.law.cuny.edu

@nicoles_nyc

[1] Client narratives can effectively highlight systemic problems and facilitate empathetic understanding by courts, state actors, and the public. Leigh Goodmark, Telling Stories, Saving Lives: The Battered Mothers’ Testimony Project, Women’s Narratives, and Court Reform, 37 Ariz. St. L.J. 709, 756 (2005); Nicole Smith Futrell, Vulnerable, Not Voiceless: Outsider Narrative in Advocacy Against Discriminatory Policing, 93 N.C. L. Rev. 1597 (2015).

[2] Clinical law scholars often engage in the use of client stories in their academic writing. In considering the tension between collaborative representation and the telling of client stories, Binny Miller writes: “Even if the ethical rules governing client confidentiality permit [using client stories] where the client’s identity is not disclosed … legal academics need to consider whether clients should have a say in decisions about how their stories are told. Yet surprisingly, while clients are in the forefront of many law review articles, they are almost invisible in the decision-making process about which story to tell or whether to tell a story at all.” Binny Miller, Telling Stories About Cases and Clients: The Ethics of Narrative, 14 Geo. J. Legal Ethics 1, 4 (2000).

[3] These guidelines should be considered in conjunction with an organization’s social media policy.

[4] Am. Bar Ass’n, Model Rules of Prof’l Conduct (Dec. 4, 2018), [hereinafter MRPC].

[5] Am. Bar Ass’n, Criminal Justice Standards for the Defense Function, 4th ed. (Apr. 16, 2015) [hereinafter Defense Function].

[6] Am. Bar Ass’n, Prof’l Responsibility: Formal Opinion 480 (Mar. 6, 2018), [hereinafter Formal Opinion 480].

[7] Defense Function, supra note 5, at 4-1.2(e).

[8] Id

[9] Formal Opinion, supra note 6, at 1-2.

[10] MRPC, supra note 4, at 1.6 (a-c).

[11] Id.

[12] Id. at Comment 2 & 20 (“The duty of confidentiality continues after the client-lawyer relationship has terminated.”).

[13] 13  Id. at Comment 2.

[14] Id. at Comment 3.

[15] Complaint at ¶ 2, In the Matter of Kristine Ann Peshek, No. 09 CH 89 (Ill. Attorney Registration & Disciplinary Comm’n, Aug. 25, 2009).

[16] Formal Opinion 480, supra note 6; David L. Hudson Jr., Lawyers Have Enhanced Duty of Confidentiality When Engaging in Public Commentary, ABA Journal (May 1, 2018).

[17] MRPC, supra note 4, at 1.6; See, e.g., MA RPC 1.6(a) Comment 3(a) & 3(b).

[18] MRPC, supra note 4, at 1.6.

[19] MRPC, supra note 4, at 1.6 & Comment 4.

[20] Id

[21] See Lana Gollyhorn, MA, The Ethics of Sharing Client Stories: One Approach to Handling Confidentiality When We Teach Workshops or Classes, Psychol. Today (Oct. 21, 2016).

[22] MRPC, supra note 4, at 1.6 & Comment 18; See also 1.6(c): “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”

[23] Id. at 1.7 and 1.8.

[24] Id. at 1.7(a)(2).

[25] Id.

[26] Defense Function, supra note 5, at 4-1.10(h).

[27] MRPC, supra note 4, at 1.8(b).

[28] Id. at 1.9(c)(1) (emphasis added).

[29] Am. Bar Ass’n, Prof’l Responsibility: Formal Opinion 479 (Dec. 15, 2017),

[30] Michael D. Cicchini, On the Absurdity of Model Rule 1.9, 40 Vt. L. Rev. 69, 83–84 (2015).

[31] Id. at 83.

[32] Id., citing Harris v. Baltimore Sun Co., 625 A.2d 941, 947 n.3 (Md. Ct. App. 1993) (quoting Restatement of the Law Governing Lawyers § 111 (Am. Law Inst., Tentative Draft No. 3, 1990) (“[A]dverse effects include … personal embarrassment. …”)).

[33] MRPC, supra note 4, at 3.6.

[34] Id. at 3.6(a).

[35] Id. at 3.6(c).

[36] Gentile v. State Bar of Nevada, 501 U.S. 1030, 1071, 1075 (1991) (holding that state-imposed restrictions on attorney speech are subject to less stringent review than state-imposed restrictions on other speakers); See also Ría A. Tabacco, Defensible Ethics: A Proposal to Revise the ABA Model Rules for Criminal Defense Lawyer-Authors, 83 N.Y.U. L. Rev. 568, 596–97 (2008). “These cases reflect Justice Cardozo’s maxim that ‘[m]embership in the bar is a privilege burdened with conditions,’ among them restrictions on speech for a lawyer who represents a criminal defendant.”

[37] Gentile, supra note 36, at 1051-1052.

[38] Hunter v. Virginia State Bar ex rel. Third Dist. Comm., 285 Va. 485, 491, 744 S.E.2d 611, 613 (2013).

[39] Id.

[40] Id.

[41] Id. at 503.

[42] Id. at 503; see also Elizabeth Colvin, The Dangers of Using Social Media in the Legal Profession: An Ethical Examination in Professional Responsibility, 92 U. Det. Mercy L. Rev. 1, 18–19 (2015); see also In re Anonymous, 654 N.E.2d 1128, 1129 (Ind. 1995) (concluding that a lawyer violated Rule 1.6 by disclosing information related to a client representation, even though the information “was readily available from public sources and not confidential in nature”); People v. Isaac, No. 15PDJ099, 2016 WL 6124510 (Colo. O.P.D.J. Sept. 22, 2016); In re Anonymous, 654 N.E.2d 1128, 1129 (Ind. 1995); In re Bryan, 61 P.3d 641, 656-57 (Kan. 2003); Akron Bar Ass’n v. Holder, 810 N.E.2d 426, 434-35 (Ohio 2004); Lawyer Disciplinary Bd. v. McGraw, 461 S.E.2d 850, 860-63 (W. Va. 1995); In re Harman, 628 N.W.2d 351, 361 (Wis. 2001).

[43] Jan L. Jacobowitz & Kelly Rains Jesson, Fidelity Diluted: Client Confidentiality Gives Way to the First Amendment and Social Media in Virginia State Bar, Ex Rel. Third District Committee v. Horace Frazier Hunter, 36 Campbell L. Rev. 75, 106 (2013); See Andrew Perlman, More on the Confidentiality Implications of Hunter v. Virginia State Bar, Legal Ethics Forum (June 9, 2013, 8:20 PM); Richard Zitrin, Viewpoint: Guard Your Clients’ Public Secrets, The Recorder (June 7, 2013).

[44] Gideon v. Wainwright, 372 U.S. 335 (1963).

[45] See Morris v. Slappy, 461 U.S. 1, 14 (1983) (rejecting the claim that the Sixth Amendment “guarantees a meaningful relationship between accused and his counsel.”); See also United States v. Cronic, 466 U.S. 648, 657, n.21 (1984) (“the appropriate inquiry focuses on the adversarial process, not on the accused’s relationship with his lawyer as such”).

[46] Hollywood Homeless Youth Partnership, Navigating the Ethical Maze: Storytelling for Organizations Working with Vulnerable Populations (September 2017).

[47] Gollyhorn, supra note 21.

[48] The tendency toward self-interest in using client stories also exists in the academic context. Miller, supra note 2, at 37, “If I want to publish, stories about cases and clients are the easiest to draw on. I am to some extent building a career on the backs of my cases and clients. … Nonetheless, lawyer-authors need to recognize that self-interest plays a role in our desire to write about cases and clients. This self-interest may cloud our judgment about the deference that clients are owed when we write about their cases.”

[49] While not following squarely in the category of client narrative, informed consent on social media posting is also an issue when photographs and information about the client are posted by the public defender after a trial victory. Clients must be carefully informed about the potential lasting nature of information related to a case that now no longer exists.

[50] Goodmark, supra note 1, at 753.

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