D. Lawyer-Client Relationship
The first responsibilities assumed by defense counsel in a criminal matter relate to the establishment of the lawyer-client relationship. The standards relating to those duties address the following matters:
- Meeting with client as soon as practicable
- Preparing for initial interview
- Orienting client and explaining role of counsel
- Obtaining all facts from client
- Advising client about case and his or her actions
- Overcoming language and other barriers to communication
- Protecting confidentiality of communication
- Keeping client informed of case progress
- Specifying client versus attorney decisions
- Identifying and resolving conflicts of interest
1. Meeting with Client as Soon as Practicable
Commentary. The client is usually the lawyer's primary source of information for an effective defense. Early contact with the client can help speed disposition of the case, hasten the assessment and placement of clients with urgent treatment needs, and reduce unwarranted pretrial detention. It is a key safeguard for clients who are innocent. These standards must be read in conjunction with the standards on the content of the initial meeting.
ABA Standards for Criminal Justice: Prosecution Function and Defense Function
Standard 4-3.2 Interviewing the Client
(a) As soon as practicable, defense counsel should seek to determine all relevant facts known to the accused. In so doing, defense counsel should probe for all legally relevant information without seeking to influence the direction of the client's responses.
(b) Defense counsel should not instruct the client or intimate to the client in any way that the client should not be candid in revealing facts so as to afford defense counsel free rein to take action which would be precluded by counsel's knowing of such facts.
Massachusetts Committee for Public Counsel Services, Assigned Counsel Manual: Policies and Procedures
1.3 General Duties of Defense Counsel
(b) Counsel must arrange for prompt and timely consultation with the client, in person, in an appropriate and private setting. Counsel should assure him/herself that the client is competent to participate in his/her representation, understands the charges, and has some basic comprehension of criminal procedure. The client must be given adequate time to fully apprise counsel of the evidence and defenses in his/her case.
New Mexico Public Defender Department, Performance Guidelines for Criminal Defense Representation
Guideline 1.3 General Duties of Defense Counsel
(b) Counsel must be alert to all potential and actual conflicts of interest that would impair counsel's ability to represent a client. Counsel shall seek a supervisor's opinion on any potential conflicts.
Oregon State Bar, Indigent Defense Task Force Report: Principles and Standards for Counsel in Criminal, Delinquency, Dependency, and Civil Commitment Cases
Standard 1.2 General Duties and Responsibilities of Counsel to Clients; Avoiding Conflict of Interests
Upon being retained or appointed by the court, counsel should contact the client as soon as practicable and maintain regular contact thereafter. Counsel should endeavor to establish a relationship of trust and open communication with the client and should diligently advocate the client's position within the bounds of the law and the Rules of Professional Responsibility.
Implementation
1. As soon as practicable after being retained or appointed, counsel should contact the client and conduct an initial client interview.
Standard 1.4 Initial Client Interview
Counsel should conduct a client interview as soon as practicable after being retained or appointed by the court, in order to obtain information necessary to provide quality representation in the early stages of the case and to provide the client with information concerning counsel's representation and the case proceedings.
Implementation
1. To the extent possible, counsel should prepare for an initial interview with the client by reviewing petitions and/or charging documents, police and other investigative agency reports, and the reports of pretrial detention agencies, where applicable.
2. Counsel should conduct the initial interview with the client as soon as practicable and sufficiently before any court proceeding so as to be prepared for that proceeding. In instances where the client is detained or in custody, counsel should make every effort to conduct an initial interview within 48 hours of acceptance of a retainer or court appointment.
2. Preparing for Initial Interview
Commentary. Preparation is the key to attorney success. This preparation begins even before the initial meeting with the client. The two standards here detail the type of preparatory work expected to maximize the usefulness of meeting with the client.
NLADA Performance Guidelines for Criminal Defense Representation
Guideline 2.2 Initial Interview
a. Preparation:
Prior to conducting the initial interview the attorney, should, where possible:
1. be familiar with the elements of the offense and the potential punishment, where the charges against the client are already known;
2. obtain copies of any relevant documents which are available, including copies of any charging documents, recommendations and reports made by bail agencies concerning pretrial release, and law enforcement reports that might be available;
3. be familiar with the legal criteria for determining pretrial release and the procedures that will be followed in setting those conditions;
4. be familiar with the different types of pretrial release conditions the court may set and whether private or public agencies are available to act as a custodian for the client's release;
5. be familiar with any procedures available for reviewing the trial judge's setting of bail.
Oregon State Bar, Indigent Defense Task Force Report: Principles and Standards for Counsel in Criminal, Delinquency, Dependency, and Civil Commitment Cases
Standard 1.4--Initial Client Interview
Implementation
1. To the extent possible, counsel should prepare for an initial interview with the client by reviewing petitions and/or charging documents, police and other investigative agency reports, and the reports of pretrial detention agencies, where applicable.
3. Orienting Client and Explaining Role of Counsel
Commentary. These several standards detail the specifics of the initial meeting between the attorney and the client. See also, Missouri State Public Defender, Guidelines for Representation (1992), General Principle 1.4(h). The Missouri Guidelines further recommend that counsel prepare a memorandum detailing the initial meeting discussion and provide client with a copy (Guideline 2.1(2)).
ABA Standards for Criminal Justice: Prosecution Function and Defense Function
Standard 4-3.1 Establishment of Relationship
(a) Defense counsel should seek to establish a relationship of trust and confidence with the accused and should discuss the objectives of the representation and whether defense counsel will continue to represent the accused if there is an appeal. Defense counsel should explain the necessity of full disclosure of all facts known to the client for an effective defense, and defense counsel should explain the extent to which counsel's obligation of confidentiality makes privileged the accused's disclosures.
NLADA Performance Guidelines for Criminal Defense Representation
Guideline 2.2 Initial Interview
b. The Interview:
1. The purpose of the initial interview is both to acquire information from the client concerning pretrial release and also to provide the client with information concerning the case.
3. Information to be provided the client includes, but is not limited to:
A. an explanation of the procedures that will be followed in setting the conditions of pretrial release;
B. an explanation of the type of information that will be requested in any interview that may be conducted by a pretrial release agency and also an explanation that the client should not make statements concerning the offense;
C. an explanation of the attorney-client privilege and instructions not to talk to anyone about the facts of the case without first consulting with the attorney;
D. the charges and the potential penalties;
E. a general procedural overview of the progression of the case, where possible.
Connecticut Public Defender Services Commission, Guidelines on Indigent Defense
Guideline 3.2. Duty to Keep Client Informed
(c) Counsel should inform and explain to the client that he/she has the constitutional right to plead not guilty; to be tried by a judge or a jury; to the assistance of counsel; to confront and cross-examine witnesses against him/her; to testify and, to not be compelled to incriminate him/herself.
(d) Counsel should explain to the client the court procedures.
(e) Counsel should explain the attorney-client privilege to the client and explain to the client that he/she is not required to speak to anyone regarding the case without counsel present.
New Mexico Public Defender Department, Performance Guidelines for Criminal Defense Representation
Guideline 1.3
(c) Counsel has a continuing obligation to keep the client informed of the progress of the case.
Oregon State Bar, Indigent Defense Task Force Report: Principles and Standards for Counsel in Criminal, Delinquency, Dependency, and Civil Commitment Cases
Standard 1.4 Initial Client Interview
Counsel should conduct a client interview as soon as practicable after being retained or appointed by the court, in order to obtain information necessary to provide quality representation at the early stages of the case and to provide the client with information concerning counsel's representation and the case proceedings.
Implementation
3. At the initial interview, counsel should obtain the following types of information from the client:
a. the facts surrounding the allegations against or affecting the client;
b. any possible witnesses who should be located;
c. any evidence of improper conduct by police or other investigative agencies, juvenile or mental health departments or the prosecution which may affect the client's rights;
d. any evidence that should be preserved; and
e. evidence of the client's competence to stand trial and/or mental state at the time of the offense.
4. Counsel should convey the following types of information to the client:
a. the nature of the allegations, what the state must prove, and the likely and maximum potential consequences;
b. the role of counsel and the defense function;
c. an explanation of the attorney-client privilege and instructions not to talk to anyone about the facts of the case without first consulting with the attorney;
d. a general procedural overview of the likely progression of the case;
e. the procedures that will be followed in setting the conditions of pretrial release, if applicable to the type of proceeding and the particular client;
f. an explanation of the type of information that will likely be requested in any interview that may be conducted by pretrial release, juvenile court counselors, children's services personnel, or civil commitment investigators or doctors and what information the client should and should not provide;
g. how and when counsel can be reached;
h. when counsel will see the client next;
i. realistic answers, where possible, to the client's most urgent questions; and
j. what arrangements will be made or attempted for the satisfaction of the client's most pressing needs; e.g., medical or mental health attention, contact with family or employers.
4. Obtaining All Facts from Client
Commentary. It is critical for defense counsel to obtain all the relevant facts about the case, including both exculpatory and seemingly inculpatory information. Only when all the facts are obtained from the client can a defense strategy be developed.
ABA Standards for Criminal Justice: Prosecution Function and Defense Function
Standard 4-3.2 Interviewing the Client
(a) As soon as practicable, defense counsel should seek to determine all relevant facts known to the accused. In so doing, defense counsel should probe for all legally relevant information without seeking to influence the direction of the client's responses.
(b) Defense counsel should not instruct the client or intimate to the client in any way that the client should not be candid in revealing facts so as to afford defense counsel free rein to take action which would be precluded by counsel's knowing of such facts.
NLADA Performance Guidelines for Criminal Defense Representation
Guideline 2.2 Initial Interview
a. The Interview:
3. Information to be provided the client includes, but is not limited to:
A. an explanation of the procedures that will be followed in setting the conditions of pretrial release;
B. an explanation of the type of information that will be requested in any interview that may be conducted by a pretrial release agency and also an explanation that the client should not make statements concerning the offense;
C. an explanation of the attorney-client privilege and instructions not to talk to anyone about the facts of the case without first consulting with the attorney;
D. the charges and the potential penalties;
E. a general procedural overview of the progression of the case, where possible;
c. Supplemental Information
Whenever possible, counsel should use the initial interview to gather additional information relevant to preparation of the defense. Such information may include, but is not limited to:
1. the facts surrounding the charges against the client;
2. any evidence of improper police investigative practices or prosecutorial conduct which affects the client's rights;
3. any possible witnesses who should be located;
4. any evidence that should be preserved;
5. where appropriate, evidence of the client's competence to stand trial and/or mental state at the time of the offense.
Connecticut Public Defender Services Commission, Guidelines on Indigent Defense
Guideline 5.1. Disposition of the Case
(a) Counsel should advise the accused with complete candor concerning all aspects of the case, including a candid estimate of the probable outcome.
(b) 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/her pleas.
(c) Counsel should caution the client to avoid communication about the case with witnesses or other individuals, except with the approval of counsel.
Massachusetts Committee for Public Counsel Services, Assigned Counsel Manual: Policies and Procedures
2.2. Initial Interview and Preparation for Bail Hearing
(e) Whether or not the client is detained, counsel should describe the court procedures and counsel's obligation regarding the attorney/client privilege. Counsel should explain the client's rights under the Fifth Amendment to the United States Constitution and Article XII of the Massachusetts Declaration of Rights and should specifically advise the client not to discuss the case or any of the facts surrounding it with anyone, including fellow prisoners, unless counsel advises otherwise. Counsel should inform the client of the right to request that his/her attorney be present at any interview or questioning.
New Mexico Public Defender Department, Performance Guidelines for Criminal Defense Representation
Guideline 2.2 Initial Interview
(a) Preparation:
Prior to conducting the initial interview the attorney, should, where possible:
(1) be familiar with the charges against the client, as well as the elements and potential punishment of each charged offense;
(2) obtain copies of any relevant documents which are available, including copies of any charging documents, recommendations and reports made by pretrial service agencies concerning pretrial release, and law enforcement reports that might be available;
(3) be familiar with the legal criteria for determining pretrial release and the procedures that will be followed in setting those conditions;
(4) be familiar with the different types of pretrial release conditions the court may set and whether private or public agencies are available to act as a custodian for the client's release;
(5) be familiar with any procedures available for reviewing the judge's setting of bail.
(b) The Interview:
(1) The purpose of the initial interview is both to inform the client of the charges/penalties and to acquire information from the client concerning pretrial release. Counsel should ensure at this and all successive interviews and proceedings that barriers to communication, such as differences in language or literacy, be overcome.
(2) Information that may be acquired includes, but is not limited to:
(A) the client's ties to the community, including the length of time he or she has lived at the current and former addresses, family relationships, immigration status (if applicable), employment record and history;
(B) the client's physical and mental health, educational, and armed services records;
(C) the client's immediate medical needs;
(D) the client's past criminal record, if any, including arrests and convictions for adult and juvenile offenses and prior record of court appearances or failure to appear in court; counsel should also determine whether the client has any pending charges and also whether the client is on probation or parole and the client's past or present performance under supervision;
(E) the ability of the client to meet any financial conditions of release;
(F) the names of individuals or other sources that counsel can contact to verify the information provided by the client; counsel should obtain the permission of the client before contacting these individuals.
(3) Information that may be provided to the client includes, but is not limited to:
(A) an explanation of the procedures that will be followed in setting the conditions of pretrial release;
(B) an explanation of the type of information that will be requested in any interview that may be conducted by a pretrial release agency and also an explanation that the client should not make statements concerning the offense;
(C) an explanation of the attorney-client privilege and instructions not to talk to anyone about the facts of the case without first consulting with the attorney;
(D) the charges and the potential penalties;
(E) a general procedural overview of the progression of the case, where possible.
(c) Additional Information:
Whenever possible, counsel should use the initial interview to gather additional information relevant to preparation of the defense. Such information may include, but is not limited to:
(1) the facts surrounding the charges against the client;
(2) any evidence of improper police investigative practices or prosecutorial conduct which affects the client's rights;
(3) any possible witnesses who should be located;
(4) any evidence that should be preserved;
(5) where appropriate, evidence of the client's competence to stand trial and/or mental state at the time of the offense.
Oregon State Bar, Indigent Defense Task Force Report: Principles and Standards for Counsel in Criminal, Delinquency, Dependency, and Civil Commitment Cases
Standard 1.3 Role of Counsel
Counsel should seek the lawful objectives of the client and should not substitute counsel's judgment for that of the client in those case decisions that are the responsibility of the client.
Implementation
1. Counsel is ordinarily bound by the client's definition of his or her interests and should not substitute counsel's judgement for that of the client regarding the objectives of the representation.
2. Counsel should advise the client regarding the probable success and consequences of adopting any posture in the proceedings and give the client the information necessary to make an informed decision. Counsel should consult with the client regarding the assertion or waiver of any right or position of the client.
3. Counsel should consult with the client as to the strategy and means by which the client's objectives are to be pursued and exercise his or her professional judgment concerning technical and legal tactical issues involved in the representation.
Standard 1.4 Initial Client Interview
Counsel should conduct a client interview as soon as practicable after being retained or appointed by the court, in order to obtain information necessary to provide quality representation at the early stages of the case and to provide the client with information concerning counsel's representation and the case proceedings.
Implementation
3. At the initial interview, counsel should obtain the following types of information from the client:
a. the facts surrounding the allegations against or affecting the client;
b. any possible witnesses who should be located;
c. any evidence of improper conduct by police or other investigative agencies, juvenile or mental health departments or the prosecution which may affect the client's rights;
d. any evidence that should be preserved; and
e. evidence of the client's competence to stand trial and/or mental state at the time of the offense.
5. Advising Client about Case and His or Her Actions
Commentary. Once the attorney has gained all the information needed for the defense, the client must be informed of what he or she must do (or not do), what future steps will be taken, and the prospects for a successful defense.
ABA Standards for Criminal Justice: Prosecution Function and Defense Function
Standard 4.3-7 Advice and Service on Anticipated Unlawful Conduct
(a) It is defense counsel's duty to advise a client to comply with the law, but counsel may advise concerning the meaning, scope, and validity of a law.
(b) Defense counsel should not counsel a client in or knowingly assist a client to engage in conduct which defense counsel knows to be illegal or fraudulent but defense counsel may discuss the legal consequences of any proposed course of conduct with a client.
(c) Defense counsel should not agree in advance of the commission of a crime that he or she will serve as counsel for the defendant, except as part of a bona fide effort to determine the validity, scope, meaning, or application of the law, or where the defense is incident to a general retainer for legal services to a person or enterprise engaged in legitimate activity.
(d) Defense counsel should not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation and except the defense counsel may reveal such information to the extent he or she reasonably believes necessary to prevent the client from committing a criminal act that defense counsel believes is likely to result in imminent death or substantial bodily harm.
Standard 4-5.1 Advising the Accused
(a) After 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.
(b) Defense 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.
(c) Defense counsel should caution the client to avoid communication about the case with witnesses, except with the approval of counsel, to avoid any contact with jurors or prospective jurors, and to avoid either the reality or the appearance of any other improper activity.
6. Overcoming Language and Other Barriers to Communication
Commentary. In this nation of immigrants, it is not uncommon that the client may need a translator to help in communicating with the attorney. Handicapped defendants, such as those who are deaf, may also need assistance. The standards in this section place responsibility for ensuring appropriate communication between attorney and client on the defense attorney. See also, Missouri State Public Defender, Guidelines for Representation (1992), General Principle 1.4(i).
NLADA Performance Guidelines for Criminal Defense Representation
Guideline 2.2 Initial Interview
b. The Interview:
1. The purpose of the initial interview is both to acquire information from the client concerning pretrial release and also to provide the client with information concerning the case. Counsel should ensure at this and all successive interviews and proceedings that barriers to communication, such as differences in language or literary, be overcome.
Massachusetts Committee for Public Counsel Services, Assigned Counsel Manual: Policies and Procedures
1.3 General Duties of Defense Counsel
(l) Where counsel is unable to communicate with the client because of either language differences or mental disability, the attorney shall take whatever steps are necessary to insure that he/she is able to communicate with the client and that the client understands the proceedings. Such steps would include having counsel obtain expert assistance including an interpreter for pre-trial preparation, interviews, and investigation, as well as in-court proceedings.
Oregon State Bar, Indigent Defense Task Force Report: Principles and Standards for Counsel in Criminal, Delinquency, Dependency, and Civil Commitment Cases
Principle 3
To ensure the preservation, protection and promotion of the client's rights and interests, counsel must:
8. make accommodations where necessary due to a client's special circumstances, such as youth, mental or physical disability, or foreign language barrier.
Standard 1.2 General Duties and Responsibilities of Counsel to Clients; Avoiding Conflict of Interests
2. Counsel should ensure that barriers to communication with the client, such as differences in language or literacy, are overcome. Counsel should make accommodations where necessary due to a client's special circumstances, such as youth, mental or physical disability, or foreign language barrier, including assuring that counsel has sufficient additional time and resources to make those accommodations.
7. Protecting Confidentiality of Communication
Commentary. Attorney-client privilege is critical to the attorney-client relationship. Without the trust guarded by the privilege, the client may not be willing to divulge all the facts needed by the defense attorney. Unfortunately, the physical surroundings in which the attorney-client conversation occurs may jeopardize the confidentiality required by the privilege. These standards place responsibility for ensuring confidentiality on the defense attorney.
ABA Standards for Criminal Justice: Prosecution Function and Defense Function
Standard 4-3.1 Establishment of Relationship
(a) Defense counsel should seek to establish a relationship of trust and confidence with the accused and should discuss the objectives of the representation and whether defense counsel will continue to represent the accused if there is an appeal. Defense counsel should explain the necessity of full disclosure of all facts known to the client for an effective defense, and defense counsel should explain the extent to which counsel's obligation of confidentiality makes privileged the accused's disclosures.
(b) To ensure the privacy essential for confidential communication between defense counsel and client, adequate facilities should be available for private discussions between counsel and accused in jails, prisons, courthouses, and other places where accused persons must confer with counsel.
(c) Personnel of jails, prisons, and custodial institutions should be prohibited by law or administrative regulations from examining or otherwise interfering with any communication or correspondence between client and defense counsel relating to legal action arising out of charges or incarceration.
Connecticut Public Defender Services Commission, Guidelines on Indigent Defense
Guideline 3.3. Protecting Confidentiality
Counsel should ensure that confidential communications between defense counsel and the client are conducted in privacy, including reasonable efforts to compel court and other officials to make necessary accommodations for private discussions between counsel and clients in courthouses, lockups, jails, prisons, detention centers, and other places where clients must confer with counsel.
8. Keeping Client Informed of Case Progress
Commentary. The attorney-client relationship, once begun, continues until the case is finished, the client terminates the relationship, or the court authorizes withdrawal. During the life of the relationship, the attorney is responsible for continued communication about case development with the client. See also, Missouri State Public Defender, Guidelines for Representation (1992), General Principle 1.4(d).
ABA Standards for Criminal Justice: Prosecution Function and Defense Function
Standard 4-3.8 Duty to Keep Client Informed
(a) Defense counsel should keep the client informed of the developments in the case and the progress of preparing the defense and should promptly comply with reasonable requests for information.
(b) Defense counsel should explain developments in the case to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
NLADA Performance Guidelines for Criminal Defense Representation
Guideline 1.3 General Duties of Defense Counsel
c. Counsel has the obligation to keep the client informed of the progress of the case, where it is possible to do so.
Connecticut Public Defender Services Commission, Guidelines on Indigent Defense
Guideline 3.2. Duty to Keep Client Informed
(a) Counsel should keep the client informed of any developments in the case and the progress of the preparation of the defense, and provide sufficient information to permit intelligent participation in decision making by the client.
(b) Counsel should comply with reasonable requests for information from the client and reply to client correspondence and telephone calls.
(c) Counsel should inform and explain to the client that he/she has the constitutional right to plead not guilty; to be tried by a judge or a jury; to the assistance of counsel; to confront and cross-examine witnesses against him/her; to testify; and to not be compelled to incriminate him/herself.
Oregon State Bar, Indigent Defense Task Force Report: Principles and Standards for Counsel in Criminal, Delinquency, Dependency, and Civil Commitment Cases
Principle 3
To ensure the preservation, protection and promotion of the client's rights and interests, counsel must:
7. keep the client informed and seek the lawful objectives of the client
Standard 1.2 General Duties and Responsibilities of Counsel to Clients; Avoiding Conflict of Interests
3. Counsel should maintain regular contact with the client and should keep the client informed of the progress of the case, including:
a. the importance of maintaining contact with counsel and the need to notify counsel of any change of address;
b. the names and contact information regarding counsel and staff assisting with the case; and
c. any court dates and significant developments in the case.
9. Specifying Client Versus Attorney Decisions
Commentary. The attorney works first to benefit the client. See standards relating to defining function of defense counsel above. Further, it is the client whose liberty is at stake. The client's role is like that of a patient, whose informed consent must be obtained by the physician before certain medical procedures may be undertaken. These standards detail the several decision points where defense counsel is obliged to follow the direction of the client. Conversely, other decisions about tactical procedures are more appropriately left to the discretion of counsel. See also, Missouri State Public Defender, Guidelines for Representation (1992), General Principle 1.4(g).
ABA Standards for Criminal Justice: Prosecution Function and Defense Function
Standard 4-5.2 Control and Direction of the Case
(a) Certain decisions relating to the conduct of the case are ultimately for the accused and other are ultimately for defense counsel. The decisions which are to be made by the accused after full consultation with counsel 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.
(c) If a disagreement on significant matters of tactics or strategy arises between defense counsel and the client, defense counsel should make a record of the circumstances, counsel's advice and reasons, and the conclusion reached. The record should be made in a manner which protects the confidentiality of the lawyer-client relationship.
NLADA Performance Guidelines for Criminal Defense Representation
Guideline 6.1 The Plea Negotiation Process and the Duties of Counsel
a. Counsel should explore with the client the possibility and desirability of reaching a negotiated disposition of the charges rather than proceeding to a trial and in doing so should fully explain the rights that would be waived by a decision to enter a plea and not to proceed to trial.
b. Counsel should ordinarily obtain the consent of the client before entering into any plea negotiation.
c. Counsel should keep the client fully informed of any continued plea discussion and negotiations and convey to the accused any offers made by the prosecution for a negotiated settlement.
d. Counsel should not accept any plea agreement without the client's express authorization.
e. The existence of ongoing tentative plea negotiations with the prosecution should not prevent counsel from taking steps necessary to preserve a defense.
Guideline 6.3 The Decision to Enter a Plea of Guilty
b. The decision to enter a plea of guilty rests solely with the client, and counsel should not attempt to unduly influence that decision.
Guideline 7.5 Presenting the Defense Case
a. Counsel should develop, in consultation with the client, an overall defense strategy. In deciding on defense strategy, counsel should consider whether the client's interests are best served by not putting on a defense case, and instead relying on the prosecution's failure to meet its constitutional burden of proving each element beyond a reasonable doubt.
b. Counsel should discuss with the client all of the considerations relevant to the client's decision to testify.
Connecticut Public Defender Services Commission, Guidelines on Indigent Defense
Guideline 5.2. Control and Direction of the Case
(a) Counsel should advise the client of those decisions which are ultimately for the accused, which are:
(i) what pleas to enter;
(ii) whether to accept a plea agreement;
(iii) whether to waive a jury trial;
(iv) whether to testify in his/her own behalf;
(v) whether to appeal;
(vi) whether to apply for sentence review.
(b) Counsel should also advise the client of the client's right to assert certain defenses which include extreme emotional disturbance or insanity, when applicable.
(c) Counsel should advise the client of the existence of any lesser included offense.
(d) Counsel should advise the client that strategic and tactical decisions will be made by counsel.
(e) Counsel should discuss a client's decision whether to testify at trial.
Guideline 5.3. Plea Negotiations
(d) counsel should not accept or reject any plea agreement without the authorization of the client.
Massachusetts Committee for Public Counsel Services, Assigned Counsel Manual: Policies and Procedures
1.3. General Duties of Defense Counsel
(f) The attorney shall explain to the client those decisions that ultimately must be made by the client and the advantages and disadvantages inherent in these choices. These decisions are whether to plead guilty or not guilty and to change such plea; whether to be tried by a jury or a court; whether to testify at trial; whether to appeal; and whether to waive his/her right to a speedy trial.
(g) The attorney should explain that final decisions concerning trial strategy, after full consultation with the client, and after investigation of the applicable facts and law, are ultimately to be made by the attorney. The client should be made aware that the attorney is primarily responsible for deciding what motions to file, which witnesses to call, what questions to ask, and what other evidence to present. Implicit in the exercise of the attorney's decision-making role in this regard is consideration of the client's input and full disclosure by the attorney to the client of the factors considered by the attorney in making the decisions. Counsel should inform the client of an attorney's ethical obligation, informed by professional judgment, not to present frivolous matters or unfounded actions.
5.1 Plea Negotiations
(c) The attorney shall make it clear to the client that the ultimate decision to offer a change of plea or admit to sufficient facts has to be made by the client. Counsel should investigate and candidly explain to the client the prospective strengths and weaknesses of the case for the prosecution and defense, including the availability of prosecution witnesses, concessions and benefits which are subject to negotiation, and the possible consequences of a conviction after trial. Counsel's recommendation on the advisability of a plea or admission should be based on a review of the complete circumstances of the case and the client's situation. Such advice should not be based solely on the client's acknowledgement of guilt or solely on a favorable disposition offer.
5.2 Client Decisions
(a) Where an attorney believes that the client's desires are not in the client's best interest, the attorney may attempt to persuade the client to change his/her position. If the client remains unpersuaded, however, the attorney should assure the client that he/she will defend the client vigorously.
(b) Counsel must not attempt to unduly influence or coerce the accused into pleading guilty or to admitting to sufficient facts by any means, including, but not limited to, overstating the likelihood of conviction or potential consequences, or by threatening to withdraw from representing the accused if he/she decides not to accept the proposed agreement and to proceed to trial.
(c) Notwithstanding the existence of ongoing tentative plea negotiations with the prosecution, counsel should continue to prepare and investigate the case in the same manner as if it were to proceed to trial on the merits.
6.3 Bench Trial or Jury Trial
(a) The decision to proceed to trial with or without a jury rests solely with the client after complete advice of counsel.
(b) Counsel should fully advise the client of the advantages and disadvantages of either a jury or jury-waived trial. Counsel should exercise great caution before advising a jury waiver, especially without thorough discovery, including knowledge of the likely availability of prosecution witnesses, and their likely responses to cross-examination.
New Mexico Public Defender Department, Performance Guidelines for Criminal Defense Representation
Guideline 3.5 Continuing Responsibility to Raise Issue of Client's Incompetence
(a) Defense counsel should consider the client's competence to stand trial or to enter a plea whenever defense counsel has a good faith doubt as to the client's competence to proceed in the criminal case. Counsel may move for evaluation over the client's objection, and if necessary, counsel may make known to the court those facts which raise the good faith doubt of competence to proceed in the criminal case.
(b) Where competency is at issue, counsel has a continuing duty to review and prepare the case for all court proceedings. Counsel should develop information relevant to the issue of dangerousness.
Oregon State Bar, Indigent Defense Task Force Report: Principles and Standards for Counsel in Criminal, Delinquency, Dependency, and Civil Commitment Cases
Standard 1.3 Role of Counsel
Counsel should seek the lawful objectives of the client and should not substitute counsel's judgment for that of the client in those case decisions that are the responsibility of the client.
Standard 2.3 Role of Counsel
2. Decisions as to whether to enter an admission, accept diversion or other pretrial early disposition, testify, or waive any right with respect to jurisdiction, trial, or waiver, are ultimately for the client to determine.
10. Identifying and Resolving Conflicts of Interest
Commentary. Counsel is required to represent the interests of the client as well as possible, without interference from any other source. (See standards relating to independence of defense function in Compendium Volume I, "Standards on the Administration of Defense Services.") Such representation may be jeopardized when counsel also represents another client with competing or adverse interests. These standards require defense counsel to act in specified ways whenever potential conflicts of interest exist. See also the standards on conflict-of-interest mechanisms in Compendium Volume I. See also, Missouri State Public Defender, Guidelines for Representation (1992), General Principle 1.4(c).
ABA Standards for Criminal Justice: Prosecution Function and Defense Function
Standard 4-3.5 Conflicts of Interest
a Defense counsel should not permit his or her professional judgment or obligations to be affected by his or her own political, financial, business, property, or personal interests.
b. Defense counsel should disclose to the defendant at the earliest feasible opportunity any interest in or connection with the case or any other matter that might be relevant to the defendant's selection of counsel to represent him or her or counsel's continuing representation. Such disclosure should include communication of information reasonably sufficient to permit the client to appreciate the significance of any conflict or potential conflict of interest.
c. Except for preliminary matters such as initial hearings or applications for bail, defense counsel who are associated in practice should not undertake to defend more than one defendant in the same criminal case if the duty to one of the defendants may conflict with the duty to another. The potential for conflict of interest in representing multiple defendants is so grave that ordinarily defense counsel should decline to act for more than one of several codefendants except in unusual situations when, after careful investigation, it is clear either that no conflict is likely to develop at trial, sentencing, or at any other time in the proceeding or that common representation will be advantageous to each of the codefendants represented and, in either case, that :
(i) the several defendants give an informed consent to such multiple representation; and
(ii) the consent of the defendants is made a matter of judicial record. In determining the presence of consent by the defendants, the trial judge should make appropriate inquiries respecting actual or potential conflicts of interest of counsel and whether the defendants fully comprehend the difficulties that defense counsel sometimes encounters in defending multiple clients.
d. Defense counsel who has formerly represented a defendant should not thereafter use information related to the former representation to the disadvantage of the former client unless the information has become generally known or the ethical obligation of confidentiality otherwise does not apply.
e. In accepting payment of fees by one person for the defense of another, defense counsel should be careful to determine that he or she will not be confronted with a conflict of loyalty since defense counsel's entire loyalty is due the accused. Defense counsel should not accept such compensation unless:
(i) the accused consents after disclosure;
(ii) there is no interference with defense counsel's independence of professional judgment or with the client-lawyer relationship; and
(iii) information relating to the representation of the accused is protected from disclosure as required by defense counsel's ethical obligation of confidentiality.
Defense counsel should not permit a person who recommends, employs, or pays defense counsel to render legal services for another to direct or regulate counsel's professional judgment in rendering such legal services.
f. Defense counsel should not defend a criminal case in which counsel's partner or other professional associate is or has been the prosecutor in the same case.
g. Defense counsel should not represent a criminal defendant in a jurisdiction in which he or she is also a prosecutor.
h. Defense counsel who formerly participated personally and substantially in the prosecution of a defendant should not thereafter represent any person in the same or a substantially related matter. Defense counsel who was formerly a prosecutor should not use confidential information about a person acquired when defense counsel was a prosecutor in the representation of a client whose interests are adverse to that person in a matter.
i. Defense counsel who is related to a prosecutor as parent, child, sibling or spouse should not represent a client in a criminal matter where defense counsel knows the government is represented in the matter by such prosecutor. Nor should defense counsel who has a significant personal or financial relationship with a prosecutor represent a client in a criminal matter where defense counsel knows the government is represented in the matter by such prosecutor, except upon consent by the client after consultation regarding the relationship.
j. Defense counsel should not act as surety on a bond either for the accused represented by counsel or for any other accused in the same or a related case.
k. Except as law may otherwise expressly permit, defense counsel should not negotiate to employ any person who is significantly involved as an attorney or employee of the government in a matter in which defense counsel is participating personally and substantially.
NLADA Performance Guidelines for Criminal Defense Representation
Guideline 1.3
b. Counsel must be alert to all potential and actual conflicts of interest that would impair counsel's ability to represent a client. Where appropriate, counsel may be obliged to seek an advisory opinion on any potential conflicts.
Connecticut Public Defender Services Commission, Guidelines on Indigent Defense
Guideline 4.1. Conflicts
(a) Counsel should adhere to the Rules of Professional Conduct regarding conflicts of interest
(b) Counsel should be cognizant of the existence of any potential and actual conflicts of interest which would impair counsel's ability to represent a client, such as if one client's interests are materially adverse to those of a current or former client.
(c) Except for preliminary matters such as arraignment or an initial hearing, counsel should not represent a client when a conflict of interest exists between co-defendants or multiple defendants such that the representation of one client will be directly adverse to the other client.
(d) Counsel should not represent a client if the representation of that client may materially limited by the lawyer's responsibilities to another current or former client or to a third person, or by the lawyer's own interests, unless:
(i) The lawyer reasonably believes the representation will not be adversely affected; and
(ii) The client consents after consultation, which consent should be documented by counsel in counsel's file. When the representation of multiple clients in a single matter is undertaken, the consultation should include explanation of the implications of the common representation and the advantages and risks involved.
(e) Counsel who has formerly represented a client should not thereafter use information relating to the former representation to the disadvantage of a former client unless the information has become generally known or the ethical obligation of confidentiality otherwise does not apply.
(f) Counsel should not withdraw solely on the basis of a personality conflict with the client or a difference of opinion as to how to proceed in the case, unless required by the Rules of Professional Conduct.
(g) The filing or existence of a habeas corpus petition or grievance against counsel in regard to his/her quality of representation shall not create a conflict of interest per se. Withdrawal by counsel from the representation of a client under such circumstances should occur if ordered by the court upon motion by the client or if counsel is of the opinion that the filing or existence of the habeas corpus petition or grievance will interfere with counsel's ability to adequately represent the client.
(h) Counsel should withdraw upon the filing of a civil lawsuit against counsel by a client alleging malpractice, a finding of probable cause in connection with a grievance complaint, or if counsel has been scheduled to testify at a habeas corpus trial in which (a) counsel is the subject of the claim of ineffective assistance of counsel which has been raised in the petition; and, (2) the pleadings have been closed.
Kansas Board of Indigents' Defense Services, Permanent Administrative Regulations
Rule 105-21-3. Withdrawing from cases
Any public defender may withdraw from any court-appointed case when that defender determines that there exists a possible conflict of interest in further representation of the defendant. The public defender may refuse to accept court-appointed cases when it is determined jointly by the public defender and the director that the current active caseload would preclude the public defender from providing adequate representation to new clients. When a decision is made to withdraw from a case or to not accept cases due to current caseloads, the public defender shall communicate this decision to the administrative judge of the district, who shall appoint attorneys, in sequence, from the panel for a period not to exceed three months unless such period is extended or terminated by the board at its next regularly scheduled meeting.
Massachusetts Committee for Public Counsel Services, Assigned Counsel Manual: Policies and Procedures
1.3. General Duties of Defense Counsel
(e) Counsel must be alert to all potential and actual conflicts of interest that would impair the ability to represent a client. Such conflicts should be avoided where possible or addressed in a timely manner.
Oregon State Bar, Indigent Defense Task Force Report: Principles and Standards for Counsel in Criminal, Delinquency, Dependency, and Civil Commitment Cases
Standard 1.2 General Duties and Responsibilities of Counsel to Clients; Avoiding Conflict of Interests
5. Counsel should be alert to all potential and actual conflicts of interest. If counsel identifies an actual conflict of interest, counsel should immediately request permission from the court to withdraw and substitution of qualified counsel. If counsel identifies a potential or likely conflict of interest, counsel should fully disclose the conflict to all affected clients and, if appropriate, obtain informed consent to proceed on behalf of those clients.
Standard 2.2 General Duties and Responsibilities of Counsel; Avoiding Conflicts of Interest
In adult criminal and juvenile delinquency matters, counsel or counsel associated in practice should avoid representing two or more clients who have been jointly charged or whose cases have been consolidated.
Implementation
1. Counsel should follow Standard 1.2, Implementation 5, with regard to potential and actual conflicts of interest. In both adult criminal and juvenile delinquency matters, counsel and counsel associated in practice should avoid representing two or more clients who have been jointly charged or whose cases have been consolidated for trial or hearing.