Must a criminal defense lawyer follow a client's instruction not to raise a mental-health defense the lawyer thinks is best?

Plain-English summary

The Committee was asked how a criminal defense lawyer should proceed on an application for post-conviction relief when the client insists the lawyer not place the client's mental health in issue, but the lawyer believes the best chance of success is to argue the client lacked mental competence to assist trial counsel. It concludes the lawyer need not, as an ethical matter, follow the client's instruction, but must consult the client; and the lawyer does not act unethically if, after that discussion, the lawyer chooses to follow the client's instruction.

The opinion applies Rule 1.2(a), under which the lawyer abides by the client's decisions on the objectives and consults on the means. Here the objective is shared (post-conviction relief) but the client and lawyer disagree on the means. The opinion reasons that legal theories and the supporting evidence are technical and tactical issues left to the lawyer, citing the Alaska Court of Appeals' Simeon v. State, which held that Rule 1.2(a) lists the decisions reserved to the client (plea, jury-trial waiver, whether to testify, whether to appeal) and that the lawyer has ultimate authority over other tactical decisions. The Committee adopts that view so that effective-assistance and ethical standards do not diverge, while stressing that the client retains the right to consult, which is especially important where the decision has substantial personal importance or affects third persons (and the rules generally defer to the client on concern for third persons).

The opinion adds that the lawyer may, after consultation, ethically defer to the client (citing Valcarcel v. State). It then addresses the client's competence to make the decision: under Rule 1.14 the lawyer must maintain, as far as possible, a normal client-lawyer relationship with a client under a disability, but where the lawyer reasonably believes the client cannot act in the client's own interest, the lawyer may take additional steps, including the least-restrictive option and, if necessary, seeking a guardian (citing ABA Opinion 96-404). A criminal defense lawyer who doubts a client's competence may even be obliged to disclose those doubts to the court despite the client's wishes.

In practice

Under this opinion, as the Alaska rules stood at the time, a criminal defense lawyer holds the ultimate authority over tactical decisions not reserved to the client by Rule 1.2(a), such as whether to raise the client's mental health, so the lawyer need not follow the client's contrary instruction. The opinion requires the lawyer to consult the client, treats deferring to the client after consultation as ethically permissible, and notes that where the client's competence is in doubt the lawyer must work within Rule 1.14, using the least-restrictive option and potentially disclosing competence doubts to the court.

Common questions

Q: Does a criminal defense lawyer have to follow the client's call on trial tactics?

A: No, for tactics not reserved to the client. The opinion concludes that under Rule 1.2(a) the lawyer controls tactical decisions like raising a mental-health argument, though the client decides plea, jury waiver, testifying, and appeal.

Q: Can the lawyer instead defer to the client's wishes?

A: Yes. The opinion concludes the lawyer does not act unethically if, after advising the client and consulting, the lawyer chooses to follow the client's instruction.

Q: What if the client may not be competent to decide?

A: The opinion applies Rule 1.14: maintain a normal relationship as far as possible, but if the client cannot act in their own interest the lawyer may take the least-restrictive protective step and, if necessary, seek a guardian.

Q: Can the lawyer tell the court about doubts on the client's competence?

A: The opinion notes a criminal defense lawyer who doubts the client's competence may be obliged to disclose those doubts to the court, even against the client's wishes.

Background and rules framework

The opinion interprets Alaska Rule of Professional Conduct 1.2(a) (allocation of authority between client and lawyer, analog of Model Rule 1.2) and Rule 1.14 (client with diminished capacity, Model Rule 1.14). It relies on Alaska Court of Appeals decisions (Simeon, Monroe, Valcarcel) and ABA Opinion 96-404.

Citations and references

Rules of Professional Conduct:

• Alaska RPC 1.2(a) (allocation of authority; client-reserved decisions)
• Alaska RPC 1.14 (client with diminished capacity)

Cases:

• Simeon v. State, 90 P.3d 181 (Alaska App. 2004)
• Monroe v. State, 752 P.2d 1017 (Alaska App. 1988); Valcarcel v. State, 2003 WL 22351613

Other opinions cited:

• ABA Formal Opinion 96-404 (client under a disability)

See also

• ABA Formal Op. 96-404: Client Under a Disability
• AK Bar Ethics Op. 2011-4: Criminal Appeal When the Client Cannot Be Contacted

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/2006-2-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHICS OPINION 2006-2
Responsibilities of A Lawyer to Honor Client’s Instructions on Means of
Representation in Criminal Cases
Question Presented
The Committee has been asked how a criminal defense lawyer should
proceed in representing a client on an application for post conviction relief
when the client insists that the lawyer not place his mental health into issue,
when the defense lawyer believes that the best chance of success is in arguing
that the client lacked mental competence to assist his trial counsel.
Conclusion
The Committee concludes that the lawyer need not, as an ethical matter,
follow his client’s instruction with regard to raising mental health issues.
However, the lawyer must consult with the client on the issue. Further, the
lawyer would not act unethically, if following discussion, the lawyer chose to
follow the client’s instruction and not pursue the avenue that the lawyer
believes offers the client the best chance of success.
Analysis
Rule 1.2 of the Alaska Rules of Professional Conduct, Scope of
Representation and Allocation of Authority Between Client and Lawyer,
requires a lawyer to abide by a client’s decisions concerning the objectives of
representation and to consult with the client as to the means by which they are
to be pursued.1 In the situation presented by this question, the objectives of
the client and lawyer are the same, to obtain post conviction relief. However,
the client and the lawyer differ on the means to achieve this objective. The
lawyer believes that the best argument to obtain post conviction relief is to
allege that the client was mentally incompetent to assist his own counsel at
trial. In order to make that argument, the lawyer must necessarily reveal the
nature and extent of the client’s mental health problems. The client is
adamantly opposed to this tactic.

1 ARPC 1.2(a) provides in pertinent part:
(a) A lawyer shall abide by a client’s decisions concerning the objectives of representation,…and
shall consult with the client as to the means by which they are to pursued. A lawyer shall
abide by the client’s decision whether to accept an offer of settlement of 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, whether the client will testify,
and whether to take an appeal.

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Legal theories and the type of evidence to be offered in support of those
legal theories are typically the technical and legal tactical issues left to the
lawyer’s determination. See Comment, Rule 1.2 ARPC. Moreover, the Alaska
Court of Appeals has held that a lawyer for a criminal defendant does not
render constitutionally ineffective assistance of counsel by failing to heed a
client’s wishes on tactical matters other than those specifically listed in ARCP
1.2(a). In Simeon v. State, 90 P. 3d 181,184 (Alaska App. 2004), the
defendant’s lawyer did not request jury instructions on lesser included
offenses. Simeon contended that he, not his lawyer was required to make the
decision whether to request such instructions, and the lawyer’s usurpation of
Simeon’s prerogative amounted to constitutionally ineffective assistance of
counsel. The Court of Appeals disagreed and held that ARCP 1.2(a) sets the
standard for constitutionally effective representation in criminal cases and that
it does not require the lawyer to give up decision-making on those decisions not
specifically set out in the rule as committed solely to the client’s discretion:
what plea to be entered, whether to waive jury trial, whether the client will
testify, and whether to take an appeal. The court stated:
[ARCP 1.2(a)] specifies clearly those decisions over
which the client has the ultimate authority. Since the
rule limits the client’s authority to those decisions, it
follows that the lawyer has the ultimate authority to
make other decisions governing trial tactics….
Simeon , 90 P. 3d at184. See also; Monroe v. State, 752 P.2d 1017, 1020
(Alaska App. 1988) (differences over strategy and tactics with client does not
render counsel’s performance constitutionally substandard; “the state and
federal constitutions do not guarantee a ‘meaningful relationship’ between
client and his appointed counsel.”)
Like the jury instruction issue in Simeon, the issue before the Committee
is whether the client in a criminal case should have the ultimate decisionmaking authority as to a matter not specifically listed in ARCP 1.2(a). The
Committee believes the better view is to follow the holding of the Alaska Court
of Appeals. Otherwise, a lawyer rendering constitutionally effective
representation in making certain tactical decisions might be considered to be
acting unethically for making the same decisions. Criminal defense lawyers
should not be subject to differing standards when faced with the same issue.
Even though the lawyer may have the ultimate authority to make
technical legal and tactical decisions, the client has the right to consult with
the lawyer about those decisions. ARCP 1.2(a). Careful consultation is
particularly important when, as here, the decision involves a matter of
substantial personal importance. Decisions about whether to reveal mental
health information may well have an impact on family members or other third
persons. The ARPC recognize that, at least in civil matters, decisions involving
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concern for third persons who might be adversely affected are generally left to
the client. See ARPC 1.2 cmt. (“[T]he lawyer should assume responsibility for
technical and legal tactical issues, but should defer to the client regarding such
questions as the expense to be incurred and concern for third persons who
might be affected.”) A lawyer representing a client in a criminal matter should
be mindful of the importance of these matters to the client when exercising the
lawyer’s decision-making authority.
However, the lawyer would not act unethically if, after discussing the
issues with the client, the lawyer chose to follow the client’s wishes. As the
Alaska Court of Appeals stated in Valcarcel v. State, 2003 WL 22351613
(unpublished):
Although counsel is responsible for giving competent
advice and is ultimately responsible for the tactical
and strategic decisions which they control, many
courts have concluded that an attorney does not
provide ineffective assistance of counsel when, after
advising the client of what the attorney believes to be
the best legal tactic, the attorney acquiesces in the
client’s desire to proceed in a different manner.
Citations omitted.
The question posed here raises the additional issue of whether the client
is mentally competent to make the decision about revealing his mental health
history.
When confronted with a client under a disability, such as a mental
health impairment, a lawyer is required, as far as reasonably possible, to
maintain a normal client/lawyer relationship with the client. Rule 1.14, Alaska
Rules of Professional Conduct. This would include consulting with the client
as to the means of the representation and following the client’s instructions
insofar as they are lawful and conform to the lawyer’s other ethical obligations.
When, however, the lawyer reasonably believes that the client cannot
adequately act in the client’s own interest, the lawyer may take additional steps
including, if necessary, seeking the appointment of a guardian. Id. ABA Ethics
Opinion 96-404 (1996), stresses that when a client can no longer act in his or
her own interest, the lawyer should take the action that is least restrictive
under the circumstances, stating that “[t]he appointment of a guardian is a
serious deprivation of the client’s rights and ought not to be undertaken if
other, less drastic, solutions are available.” Other less drastic solutions may be
to seek the assistance of counselors, clergy or mental health professionals in
assisting the client to understand what may be in his best interest.
A criminal defense lawyer who doubts a client’s competence may be
obliged to disclose those doubts to the court, even though it might be to the
client’s disadvantage and contravene the client’s wishes. See ABA Annotated

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Rules of Professional Conduct, Rule 1.14, Legal Background at 216. Some
practical guidance for the lawyer trying to assess a criminal defendant’s
competence may be found in 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, 99-108 (offering step-by-step analysis of
degree of client’s impairment, importance of decision being considered, type of
case, and costs and benefits to client of alternative courses of action, in
suggesting questions to ask client, similar to those used by mental health
experts in forming competency opinions).

Approved by the Alaska Bar Association Ethics Committee on April 6, 2006.
Adopted by the Board of Governors on April 25, 2006.

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