Must a criminal defense lawyer obey a competent-but-suicidal capital client who orders the lawyer to present no defense at the guilt or penalty phase of the trial?

Plain-English summary

A capital-murder defendant with a history of suicide attempts told his lawyer he intended to "commit suicide by state" by letting the state obtain the death penalty, and instructed the lawyer to present no evidence or defense at either the guilt or penalty phase. A forensic psychologist had found him competent to stand trial, but the lawyer, who had developed defense evidence, did not believe the client was making a rational, stable, informed decision.

The opinion builds on LEO 1737, where a competent client's choice to forgo mitigating evidence controlled if the lawyer had a reasonable basis to believe the preference for death was rational and stable. The present scenario differs because the client wants to forgo a defense at the guilt phase too, and the lawyer doubts the client's capacity. The committee analyzes Rule 1.2's means-versus-objectives line: it reads the rule's list of four client decisions (plea, jury waiver, testifying, and, with the ABA Standards and case law, appeal and what defenses to present) as illustrative, not exhaustive, with the means-objectives determination made case by case. Courts treat what defenses to present and whether to forgo mitigating evidence as client objectives, while witness selection, cross-examination, and motions are counsel's tactical decisions.

The pivotal point is the client's mental state. Comment 2 to Rule 1.2 directs the lawyer to Rule 1.14 when the client appears to suffer a mental disability. Rule 1.14 tells the lawyer to maintain a normal relationship as far as possible, but permits protective action when the lawyer reasonably believes the client has diminished capacity, is at risk of substantial harm, and cannot adequately act in his own interest. The committee concludes the lawyer here does consider the client's decision-making diminished, and that a competency-to-stand-trial finding does not necessarily remove the client from Rule 1.14, especially if dated. Assuming a rational basis for the lawyer's belief, Rule 1.14 permits protective action, including seeking further evaluation, seeking a guardian, or presenting a defense despite the client's directive. On the third question, the committee rejects the idea that the client pursues an "unlawful objective": the death penalty is a lawful, constitutionally governed process, and a client's preference for it is not state-assisted suicide, though Rule 1.14 may still support disregarding the directive.

In practice

The opinion holds that, under the Virginia rules as they stood at the time, the decision to present or forgo a defense is generally a client objective under Rule 1.2, but a lawyer who reasonably believes the client's capacity to decide is diminished should look to Rule 1.14 rather than simply obey. Per the opinion, Rule 1.14 then permits protective action (further evaluation, seeking a guardian, or going forward with a defense), and a client's preference for the death penalty is not an unlawful objective that the lawyer may refuse on that basis alone.

Common questions

Q: Is the decision to present no defense the client's to make?

A: The opinion treats what defenses to present as generally a client objective under Rule 1.2, while noting the rule's list of client decisions is illustrative and the means-objectives line is drawn case by case.

Q: What if the lawyer thinks the suicidal client cannot decide rationally?

A: The opinion directs the lawyer to Rule 1.14, which permits protective action (further evaluation, seeking a guardian, or presenting a defense despite the directive) when the lawyer reasonably believes the client's decision-making is impaired.

Q: Does a "competent to stand trial" finding settle the question?

A: No. The opinion says competency to stand trial is specific and does not necessarily remove the client from Rule 1.14, and a dated evaluation may warrant seeking a new one.

Q: Is choosing the death penalty an "unlawful objective" the lawyer can refuse?

A: No. The opinion concludes the death penalty is a lawful process and a client's preference for it is not unlawful, though Rule 1.14 may still support disregarding the directive based on capacity.

Background and rules framework

The opinion interprets Rule 1.2 (Model Rule 1.2), allocating objectives to the client and means to the lawyer, and Rule 1.14 (Model Rule 1.14), governing clients with diminished capacity, including protective action and the Rule 1.6 confidentiality limits on it. It draws on ABA Criminal Justice Standard 4-5.2 and case law distinguishing client objectives from counsel's tactical decisions, and builds on LEO 1737.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.2 / Virginia Rule 1.2 (scope; objectives versus means)
• Model Rule 1.14 / Virginia Rule 1.14 (client with diminished capacity; protective action)
• Model Rule 1.6 / Virginia Rule 1.6 (confidentiality; limits on disclosure when taking protective action)

Cases:

• Jones v. Barnes, 463 U.S. 745 (1983) (decisions reserved to the criminal defendant)

Other opinions cited:

• Virginia LEO 1737 (competent client's choice to forgo mitigating evidence)
• ABA Criminal Justice Standard 4-5.2 (control and direction of the case)

See also

• VA LEO 1817: Lawyer Error Causing a Missed Appeal
• VA LEO 1823: Waiving a Jury Trial Without Consent
• ABA Formal Op. 96-404: Client Under a Disability

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1816.pdf

Original opinion text

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

Committee Opinion
August 17, 2005

LEGAL ETHICS OPINION 1816

MUST AN ATTORNEY COMPLY WITH
THE CLIENT’S REQUEST NOT TO
PRESENT A DEFENSE AT TRIAL WHEN
THE CLIENT IS SUICIDAL?

You have presented a hypothetical involving an attorney’s defense of a criminal
defendant charged with capital murder. The client displays suicidal tendencies. He was
suicidal before and during the time of the alleged crime. He has attempted to commit
suicide not only prior to incarceration but also while in jail for the present charges. He
has explained to the attorney that as those attempts were unsuccessful, he now intends to
“commit suicide by state” by allowing the state to succeed in its efforts to have the death
penalty imposed upon him. The client says that he does not believe that his actions
necessarily meet all of the requirements for capital murder, since his actions were neither
premeditated nor intentional. The client wants to plead not guilty and request a trial by
jury because he believes that a jury is more likely to sentence him to death. In
furtherance of that objective, the client has instructed the defense attorney not to present
any evidence or defense during either the guilt or the penalty phases of the trial. The
client has previously been evaluated for competency; the forensic psychologist concluded
that the client met the legal standard for competency at that time. The defense attorney
has developed evidence for both the guilt and penalty phases of the trial. This attorney
does not believe that the client is making a rational, stable and informed decision since
his actions are motivated by his suicidal tendencies.
Under the facts you have presented, you have asked the committee to opine as to the
following:
1) Is the lawyer ethically bound by his client’s instructions that the lawyer is not to
present any evidence or argument during either the guilt or penalty phase of the trial?
2) What actions should the lawyer take if he believes that his client is not making an
informed, rational and stable decision?
3) What action should the lawyer take if he believes that this client is pursuing an
unlawful objective?
This committee first analyzed this phenomenon of criminal defendants electing
execution in LEO 1737. That opinion involved a competent client requesting that the
attorney refrain from presenting mitigating evidence at sentencing. The opinion
acknowledged the difficulty of these situations as involving both moral and ethical issues
for the attorney. Also adding to the complexity of the analysis of such situations are the
constitutional issues regarding criminal defendants. 1
1

A distinction can be made between the questions of what decisions should all attorneys leave to their
clients to comply with Rule 1.2’s concept of scope and what decisions must any defense attorney leave to a
criminal defendant to preserve that client’s constitutional protections. This opinion addresses the first
question, but of course any decisions of the latter variety would necessarily come within the category

Committee Opinion
August 17, 2005

In LEO 1737, the analysis focused on the attorney’s duty to pursue the lawful
objectives of his client. The conclusion of that analysis was that
Where the attorney has a reasonable basis to believe that the client’s
preference for the death penalty is rational and stable, the client’s
decision controls.
The present scenario differs from that of LEO 1737 in two ways. First, the client is
asking the attorney to forgo the presentation of evidence not only at sentencing but also at
the guilt phase of the trial. Second, while the client has been found competent, the
attorney, in whole or in part because of the suicidal tendencies, does not consider his
client able to make a rational decision about this important matter.
Is the ethical dilemma different for this attorney considering evidence for trial than for
the LEO 1737 attorney, asked only to refrain from presenting mitigating evidence at
sentencing? You inquiry raises a question of the scope of the attorney’s authority. Who
gets to decide what, if any, evidence should be put forward – the attorney or the client?
Rule 1.2 governs issues of scope. That rule, in pertinent part, states as follows:
(a) A lawyer shall abide by a client's decisions concerning the
objectives of representation, subject to paragraphs (b), (c), and (d), and
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, after consultation
with the lawyer, 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 and whether the client will testify.
(b) A lawyer may limit the objectives of the representation if the
client consents after consultation.
Comment One to the rule elaborates upon this distinction between means and
objectives:
Both lawyer and client have authority and responsibility in the
objectives and means of representation. The client has ultimate
authority to determine the purposes to be served by legal
representation, within the limits imposed by the law and the lawyer's
professional obligations. Within those limits, a client also has a right to
consult with the lawyer about the means to be used in pursuing those
objectives. In that context, a lawyer shall advise the client about the
advantages, disadvantages, and availability of dispute resolution
established by the first question. For discussion of those decisions derived from constitutional protections,
such as the right to a jury trial, see Jones v. Barnes, 463 U.S. 745 (1983).

Committee Opinion
August 17, 2005
processes that might be appropriate in pursuing these objectives. At the
same time, a lawyer is not required to pursue objectives or employ
means simply because a client may wish that the lawyer do so. A clear
distinction between objectives and means sometimes cannot be drawn,
and in many cases the client-lawyer relationship partakes of a joint
undertaking. In questions of means, the 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 adversely affected. These Rules
do not define the lawyer's scope of authority in litigation.
As acknowledged in that Comment, distinguishing between means and objectives in a
particular instance is not always easy to make.
The committee does not read Rule 1.2(a)’s list of four decisions that must be made by
the client in criminal cases as an exclusive list. To the contrary, as quoted above,
Comment One suggests other possible examples that could arise: “questions as to the
expenses to be incurred and concern for third persons.” The committee concludes that
Rule 1.2 presents no exhaustive list of decisions that must be made by the client; rather,
the rule and its comments provide a standard and guidance for that determination to be
made on a case-by-case basis.
The Criminal Justice Section of the American Bar Association provides similar
guidance for defense attorneys in the form of Standards. Pertinent here are paragraphs
(a) and (b) of Standard 4-5.2, “Control and Direction of the Case,” stating:
(a) Certain decisions relating to the conduct of the case are ultimately
for the accused; others are ultimately for defense counsel. The
decisions which are to be made by the accused after full consultation
include:
(i) what pleas to enter;
(ii) whether to accept a plea agreement;
(iii) whether to waive jury trial;
(iv) whether to testify in his or her own behalf; and
(v) whether to appeal.
(b) Strategic and tactical decisions should be made by defense counsel
after consultation with the client where feasible and appropriate. Such
decisions include what witnesses to call, whether and how to conduct
cross-examination, what jurors to accept or strike, what trial motions
should be made, and what evidence should be introduced.

Committee Opinion
August 17, 2005

Thus, rather like Rule 1.2’s delineation of decisions involving means as within the
purview of the attorney, this standard places “strategic and tactical decisions” in that
category. 2 The judicial decisions addressing this issue, frequently in the context of
ineffective assistance of counsel claims, make similar distinctions. Courts have
identified a number of decisions involving the basic objectives of the representation, and
therefore in the purview of the client: whether to plead guilty 3, whether to waive a jury
trial 4, whether to testify5, whether to take an appeal 6, whether to be represented by
counsel 7 , what types of defenses to present 8, whether to submit a lesser-included-offense
instruction 9, and whether to refrain from presenting mitigating evidence at sentencing. 10
In contrast, identified as tactical decisions of strategy, within the purview of the attorney,
are which witnesses to call 11, how to conduct cross-examination 12, choice of jurors 13,
which motions to file 14, whether to request a mistrial 15, whether to stipulate to easily
provable facts 16, and when to schedule court appearances. 17 The judicial decisions
provide two categories, which are consistent with the distinction made in Rule 1.2
between “objectives” and “means.”
The answer to your first question involves this difficult distinction regarding the scope
of the attorney/client relationship. Critical to that determination for the attorney in this
hypothetical is the issue raised in your second question: what if the attorney does not
believe his client is able to make an informed, rational and stable decision on this matter.
The facts of the hypothetical suggest that the client has had repeated suicide attempts and
is seeking to limit the representation in his case as just one more suicide effort.
A client’s mental state is relevant to the scope determination discussed above.
Specifically, Comment 2 to Rule 1.2 states as follows:
2

As with Rule 1.2, the committee reads neither category presented in Standard 4-5.2 as establishing an
exhaustive list; both paragraphs (a) and (b) use the word “include” before listing examples. Decisions not
listed in that standard’s examples could, depending on the character of the decision, belong to either
category.
3
See Jones v. Barnes, 463 U.S. 745 (1963)
4
Id.
5
Id.
6
Id.
7

See, e.g., U.S. v. Boyd, 86 F.3d 719 (7th Cir. 1996).

8

See, e.g. Meeks v. Berg, 749 F.2d 322 (6th Cir. 1984); State v. Hedges, 8 P.3d 1259 (Kan. 2000); State v.
Debler, 856 S.W.2d 641 (Mo. 1993); People v. Frierson, 705 P.2d 396 (Cal. 1985).
9
People v. Segoviano, 725 N.E.2d 1275 (Ill. 2000).
10
See LEO 1737 and cases cited therein.
11
See, e.g., People v. McKenzie, 668 P.2d 769 (Cal. 1983); State v. Davis, 506 A.2d 86 (Conn.1986).
12
Id. and see, e.g., United States v. Claiborne, 509 F.2d 473 (D.C. Cir. 1974).
13
Id. and see, e.g., State v. Burnette ,583 N.W.2d 174 (Wis. Ct. App. 1998).
14
Id; and see Sexton v. French, 163 F.3d 874 (4th Cir. 1998); State v. Gibbs, 758 A.2d 327 (Conn. 2000);
State v. Mecham, 9 P.3d 777 (Utah 2000); State v. Oswald, 606 N.W.2d 207 (Wis. Ct. App. 1999).
15
See, e.g., United States v. Washington, 198 F.3d 721 (8th Cir. 1999).
16
See Poole v. United States, 832 F.2d 561 (11th Cir. 1987).
17

New York v. Hill, 528 U.S. 110 (2000).

Committee Opinion
August 17, 2005

In a case in which the client appears to be suffering mental disability,
the lawyer’s duty to abide by the client’s decision is to be guided by
reference to Rule 1.14.
Rule 1.14 addresses how an attorney’s representation is affected when the client has
impairment. That rule provides the following direction:
(a) When a client's ability to make adequately considered decisions in
connection with the representation is diminished, whether because of
minority, mental impairment or some other reason, the lawyer shall, as
far as reasonably possible, maintain a normal client-lawyer 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.
Thus, the committee opines that the answers to questions 1 and 2 for this attorney are
inextricably linked. The committee concludes, based on both the facts and the particular
questions asked in this request, that this attorney does consider that, as described in Rule
1.14(a), his “client’s ability to make adequately considered decisions in connection with
the representation is diminished,” as contemplated in Rule 1.14(a). The facts state that a
forensic psychologist evaluated the client and concluded that he is competent to stand
trial. The committee suggests that the evaluation’s conclusion does not necessarily
remove this attorney and client from the application of Rule 1.14. The determination of
competency to stand trial is specific enough such that a client may have been determined
competent for trial but nonetheless under impairment with regard to making decisions
involving the matter. Also, the facts do not state when the evaluation was done; if the
client’s mental state has deteriorated since that time, the attorney again should consider
obtaining a new evaluation.
LEO 1737 suggests that for an attorney properly to follow a client’s directive regarding
an important decision, the attorney should have a reasonable basis to believe that the
client is able to make a rational, stable decision. In contrast, the attorney in the present
scenario believes that the client is unable to make such a decision. Accordingly,

Committee Opinion
August 17, 2005
assuming the attorney has a rational basis for that belief, Rule 1.14 permits this attorney
to take such protective action as is necessary to protect his client. Such action may
properly include, but is not limited to, seeking further evaluation of the client’s mental
state, seeking an appointment of a guardian, and/or going forth with a defense in spite of
the client’s directive to the contrary. The precise steps appropriate will depend on the
attorney’s conclusion regarding the degree of the client’s impairment.
Finally, your third question suggests that perhaps the attorney need not follow this
client directive as it seeks an unlawful objective. The committee disagrees with that
characterization. The imposition by the state of the death penalty is a lawful process,
governed by constitutional parameters. A client’s election preference for that penalty
does not convert the imposition of that sentence to an unlawful act. As one commentator
explained it, a client’s preference for the death penalty is not “state-assisted suicide” as
the state’s imposition of the penalty is not a homicide. 18 In LEO 1737, the committee
concluded that an attorney should respect a client’s wishes to refrain from presenting
mitigating evidence at the sentencing hearing, so long as the client was capable of a
rational decision, even where that decision was “tantamount to a death wish.” As the
committee does not consider this client’s objective “unlawful,” the committee rejects the
suggestion raised by the third question. However, as stated above, Rule 1.14 may
nonetheless support this attorney disregarding this particular directive of his client should
the attorney conclude, as discussed above, that his client cannot make “adequately
considered decisions” regarding the representation such that protective action is needed.
This opinion is advisory only, based on the facts you presented and not binding on any
court or tribunal.

18

Bonnie, “The Dignity of the Condemned”, 74 Va. L. Rev. 1363, 1375 (1988).