In an attorney-client relationship, the attorney is the agent of the client and is expected to carry out their instructions. This means that the defendant in a criminal case has the ultimate authority over major decisions. If the defendant plans to make a decision that violates the law, the attorney must do their best to prevent the defendant from making that decision and encourage them to pursue a legal course of action. If the defendant plans to make a decision that is unethical, even if it is not illegal, the lawyer also probably should persuade them to change their mind. If they fail to dissuade their client, they may need to withdraw their representation.
A defendant should carefully listen to the advice of the attorney who is representing them. They should make sure that they understand the reasoning behind the advice before rejecting it. In most cases, a competent attorney will offer sensible advice in the circumstances, and a defendant may not immediately realize why a strategy makes sense. The attorney should be able to explain why they believe that the strategy furthers their client’s interests.
Communications Regarding Plea Bargaining
A criminal defendant has the final say on whether or not to accept or propose a plea bargain.
The final decision regarding whether to accept the prosecution’s plea offer remains with the defendant. Their attorney can and should advise them on whether to accept it, but they cannot make the decision for the defendant. The attorney also has an ethical obligation to transmit any offers from the prosecution to their client and from their client to the prosecution. This is true regardless of whether the attorney believes that the prosecution is making a bad offer that their client should not accept, or whether the attorney believes that their client’s offer has no chance of being accepted by the prosecution.
To help a defendant make a decision, the attorney should carefully explain the alternatives and the possible consequences of each of them. This may involve discussing the defendant’s likelihood of success at trial and the likelihood that the prosecution will make a better offer before trial. An attorney is not expected to offer a perfect prediction of what will happen, since each situation is different. They must use their professional judgment to advise the defendant as candidly as possible.
A lawyer is not allowed to admit a client’s guilt if the client does not want to admit their guilt, even if the lawyer feels that this would be a better strategy. The Sixth Amendment allows an attorney to make some strategic decisions during the case, but it requires them to allow a client to make this type of decision. However, if the lawyer knows that their client is guilty, they must try to prevent the client from committing perjury by claiming that they are innocent when testifying.
The duty of confidentiality prevents a lawyer from admitting a defendant’s guilt if the defendant does not want to reveal it.
Changing Your Lawyer Based on a Disagreement
Most of the time, an attorney will not stop representing a client because they disagree with their decision-making, unless a decision is illegal or highly unethical. If their difference of opinion prevents the attorney from effectively advocating for them, however, the attorney may attempt to withdraw. The judge will decide whether to permit the attorney to withdraw and permit the defendant to hire a new attorney. Usually, the judge will grant this motion if it does not cause an unnecessary delay or undermine the prosecution’s case.