“I want a lawyer who will fight for me.” This is something a criminal defense lawyer hears a lot from both clients and potential clients, and is probably what most people have in mind when they hire a lawyer. The client is feeling as if the entire system is geared against him. He wants a tough advocate looking out for his interests. This is the “zealous” and “diligent” representation required by Rule 1.3 of the D.C. Rules of Professional Conduct.
Much less appreciated is the defense lawyer’s role as counselor and advisor. As defined by Rule 2.1 of the D.C. Rules, this is the lawyer’s obligation to “exercise independent professional judgment and render candid advice.” The comment to the rule continues: “A client is entitled to straightforward advice expressing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client’s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.”
While the lawyer may be able to separate the two roles in his or her own mind, providing forceful and effective advocacy when dealing with outside parties and candid and straightforward advice when dealing privately with the client, this distinction is sometimes lost on a client. The client, expecting the advocate, may be surprised when the lawyer puts on the counselor hat and delivers some bad news. Wait a second, the client says. Aren’t you supposed to be on my side?
The conflict between the lawyer’s dual roles is often most acute during the plea bargaining phase of the criminal process. Plea bargaining itself is often difficult for both lawyer and client. It becomes even more complicated when the client does not fully appreciate the lawyer’s role as counselor.
Looking at things from the client’s perspective, there are always some clients who insist that they just want to plead guilty and put the whole sorry affair behind them, even before their lawyer has had an opportunity to assess the strength of the government’s case against them. But, even in those cases, the plea bargain is usually a bitter pill to swallow: There is the possibility of jail-time or probation. There are often other requirements, such as restitution, community service, and/or alcohol awareness or anger management courses.
The client certainly doesn’t want to plead guilty to a crime he didn’t commit no matter how strong the government’s case may appear to be and no matter how favorable the terms of the agreement. Even when the client agrees that there is something to the charges, the situation is almost never as one-sided as the police report will suggest. In an assault case, for example, the client may agree that he engaged in the fight that led to the charges. But, as we know from practical experience, life is never that simple. Fights are rarely the result of a single person acting as an unprovoked aggressor. The client may want to know why he is the defendant and the other guy is the complaining witness.
Plea bargaining can also be difficult for the lawyer. The decision is clear-cut if the client insists he will not even consider a deal, if the client’s case is very strong, or if the government’s offer is very bad. I recently took a case to trial, for example, after concluding that, based on the government’s offer and “equities” in favor of my client, I could lose the case at trial and still come away with a sentence more favorable to my client. That took off some the pressure in advising the client.
But it is often difficult to advise the client on the best course of action. No matter how well you are able to assess the relative strengths of both your own case and the government’s case, there are still a number of unknown variables that are difficult to factor into the equation. Sometimes, particularly if the charges are not serious, the government’s case just falls apart. A key witness fails to appear. Does the good deal offered by the prosecution, often right before trial, indicate some weakness in the government’s case known only to the prosecution and not covered by Brady? Even when the government’s case appears particularly strong, it is difficult to advise the client he should give up his constitutional right to trial, his right to put the government’s case to the test. I always hate that part of the judge’s colloquy with the client during the guilty plea in which the judge goes through all the constitutional rights the client is waiving by entering into the guilty plea: the right to a jury in more serious cases, the right to cross-examine the government’s witnesses, the right to call witnesses for the defense.
If the process itself is painful for both the client and the lawyer, the process becomes even more difficult when the client fails to fully appreciate the distinction between the lawyer’s role as advocate and his role as counselor. I have gotten better at explaining this to clients: Just because I am now advising you to take this guilty plea does not mean I will advocate any less forcefully and effectively for you if you ultimately decide you want to take the case to trial. My task is a little bit easier now that I am in private practice representing what is generally a more sophisticated group of clients. But it can still be difficult sometimes to make sure the client understands this distinction.
A couple of years, back when I was still an assistant public defender, I sat with a client in a cinderblock interview room at the Curran-Fromhold Correctional Facility in Philadelphia. I reviewed for the client my assessment of the relative strengths of both the government’s case and our own case. I went over the terms of the deal and the expected sentence based on the sentencing guidelines if we took the case to trial and lost. He listened to all of this carefully, but I could see the disappointment on his face. He didn’t like what I was saying.
He also had some of his own ideas, based on his visit to the jail law library and what other inmates were telling him, on how he thought we could beat the case at trial. I didn’t agree with him, and I told him why not. Our conversation grew heated, and I was angry at myself afterward for allowing myself to dig in, no matter how strongly I felt that what I was advising him was the wisest course of action. The decision whether or not to accept the deal was, of course, entirely the client’s.
As for this particular client, I had succeeded in delivering “candid advice” however “unpalatable” according to the comments to Rule 2.1. Where I had failed was in “[sustaining] the client’s morale” while putting the advice “in as acceptable a form as honesty [permitted].” The client was now faced with a completely unenviable choice: Either he accepted a plea bargain he didn’t want or he went to trial with a lawyer he thought did not believe in his case.
The two of us looked at each other across the rickety table for a few moments before he told me he wanted another lawyer to represent him. Since he couldn’t afford to retain a lawyer and since I was the public defender scheduled for that courtroom that day, this meant that I needed to take a continuance so that another public defender could represent him at the next listing. The continuance would mean that the client would need to sit in custody for another four to six weeks until the next court listing. At the same time, the client was earning time credit on the case. The extra time he spent in custody awaiting trial would be applied to his sentence should he ultimately plead guilty or be convicted. If he ultimately beat the case, well, the extra time he spent in custody would be a distant memory.
I wrote a note to the file so that the next public defender assigned to the case would understand the history. (My supervisor also chewed me out for agreeing to the client’s request for a continuance: “You damn well better have had another valid reason for taking the continuance,” he told me.)
A couple of month later I followed up with the client’s next defender to find out what had happened with the case. The defender told me that she too had been unable to talk him into the plea agreement and that, although she ended up taking the case to trial and losing, with the client getting a longer sentence than he would have had he accepted the deal, the client seemed perfectly happy after the guilty verdict and sentencing. Sometimes clients just need their day in court. Sometimes the most important thing for the client is the satisfaction of putting the government’s case to the test. It is the knowledge that, win or lose, the client has been heard.