I attended a seminar on capital litigation and the question posed was whether a lawyer could be ordered by his client not to present any mitigation if the client had been convicted of murder of the first degree. According to the hypothetical, the client preferred death as opposed to life imprisonment and at least appeared to be competent. Can a lawyer ethically allow a client to go to the death phase without presenting any mitigating evidence?
The answer, at least in Pennsylvania, is that a lawyer cannot ethically do so. Under the Rules of Professional Conduct, the lawyer and client have to establish the scope of representation. In reality, that means they must be on the same page on strategic decisions, although tactical decisions are within the lawyer’s realm.
