Lawyers are obligated to present 
 mitigating evidence.

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.

There are certain things, under Rule of Professional Conduct 1.2, dealing with the scope of representation that only a client can decide. In a criminal case, a lawyer has to abide by the client’s decision about any plea to be entered, whether to waive a jury trial and whether or not the client will testify.

There is nothing in the rule or comments that would even remotely suggest a lawyer would not have an obligation to present mitigating evidence. The penalty phase where death is being sought is very different than a trial phase or guilty plea. Clients can agree to plead guilty in a trial phase, but they cannot agree to plead to death.

Society has an interest in whether death is to be imposed. There is a very detailed death statute with mitigating and aggravating circumstances, which provides in detail the procedure for a death phase hearing. A lawyer has an obligation to present mitigating evidence, even if the client doesn’t wish it to be done. One of the reasons is that, under the death statute, the Pennsylvania Supreme Court has a mandatory obligation to review all death cases.

Any imposition of death has to be carefully considered by the Supreme Court. The Supreme Court cannot fulfill that duty if no mitigating evidence was presented because the client ordered it not to be.

The days of presenting grandmother, mother and sister are over and long gone. Although all of them could well testify during a death penalty phase, there is a need for mitigation experts, psychologists, trauma experts, mental retardation experts, etc.

A lawyer has the obligation to do so. The lawyer, as an officer of the court, has an obligation to make a full and complete record on the penalty phase. Further, a lawyer cannot let a client, in essence, commit legal suicide. Society cannot allow someone to be given the death penalty without a full and complete review of any and all issues and a full and complete weighing of all mitigating and aggravating circumstances. A lawyer, as an officer of the court, has the obligation to make a full record so the weighing process can be done by the jury and ultimately the Supreme Court.

A lawyer cannot counsel or allow his or her client to do something illegal. For instance, a lawyer cannot allow his or her client to present false evidence, per Rules 3.3 and 3.4. A lawyer, in a criminal case only, can, under limited circumstances, allow his client to testify falsely, but the lawyer can only use a narrative approach. The lawyer, before that occurs, has an obligation to try to convince the client not to testify falsely.

But the death penalty is a very different situation. The lawyer has an obligation to defend the client against it to the best of his or her ability. The obligation is mandatory, so the Supreme Court can make a full and complete review of the record. It would be illegal, unethical and unconscionable for a lawyer to allow a client to, in effect, plead guilty to the penalty of death.

Further, under Rule of Professional Conduct 1.14, a lawyer who is representing a client facing the death penalty has an extra obligation. The client may well be under disability. If the client is very young, one’s minority is considered a disability under Rule 1.14. Normally, people who are facing the death penalty have serious psychological and psychiatric issues. Those issues impact not only mitigation, but also the ability to fully understand events or make informed decisions. A defendant’s limited cognitive abilities may place him or her in Rule 1.14 diminished-capacity status, requiring a lawyer to be much more diligent and maybe to even consider a guardian. In capital litigation, there have been friends of the court used at times and that has been allowed by the Supreme Court.

There cannot be an illegal scope of representation. It would be illegal for a lawyer to agree not to present mitigating evidence on the issue of penalty when death is at issue. The lawyer has an obligation, despite the client’s lack of cooperation, to present mitigating testimony, with family, friends, mitigation experts and other experts.

Referral arrangements should be made in writing.

I referred a case to a lawyer and he agreed to pay me a referral fee upon its successful conclusion. The client is now objecting. Can I get the referral fee?

Referral fees are allowed in Pennsylvania and there is no quantum meruit component. If a lawyer refers a case to another lawyer, the lawyer can receive a fee, even though the only effort the lawyer made in the case might be the telephone call to the lawyer to whom the case is being referred.

There is a good purpose for this rule. Although it appears like a windfall to a lawyer referring a case, in reality it has a very excellent purpose of convincing lawyers to refer cases in areas where the lawyer feels uncomfortable or doesn’t have the skills or expertise.

Under Rule of Professional Conduct 1.5(e), a lawyer is allowed to divide the fee. The only involvement of the client is that the client has to be advised of the division of the fee. Once advised, the client can object to the participation. Rule 1.5(e)(1) requires client consent of a division. But that should be done at the beginning of the referral arrangement.

There is no requirement that the client know the specific amount of the fee. The only limitation under Rule 1.5(e) is that the referral fee not be illegal or clearly excessive under Rule 1.5(e)(2). Other than the client being told that there is going to be a split, the client does not have to be given any further details.

Further, the client does not suffer under the referral arrangement. If a lawyer is sharing the fee with the referring lawyer, that comes out of the lawyer’s share and has nothing to do with the amount the client would receive. A lawyer could not have a referral arrangement where he or she enhances the fee and takes more money from the client to cover the referral. That would be illegal and considered excessive under those facts.

The client cannot veto the specifics of a referral arrangement, but according to the rule, the client could object to the referral.

A smart lawyer would require the consent of the client at the beginning of the referral arrangement. The client should not be allowed to object once the case is resolved, because all parties relied on the referral fee agreement.

Clearly, any referral arrangement under Rule 1.5(e) can also run into legal issues. There is a valid contract between two lawyers. The client then objects at the time of the payment of the referral fee. The lawyer then indicates he or she cannot pay the referral fee because the client has objected. That should not be allowed by any court. The terms of the contract would override, under those circumstances, the delayed objection of the client.

If there is a dispute as to the referral fee, the referral fee has to be held in escrow until the dispute is resolved. Therefore, if the client tells the lawyer not to pay the referral fee, the lawyer should hold the disputed referral fee in escrow until the issue has been resolved between the client and the referring lawyer.

Rule 1.5(e) does not provide any more guidance under these circumstances. A good rule of thumb is for every lawyer to have a referral arrangement in writing. Perhaps notice to the client should be in writing and sent to the referring lawyer also and should confirm the client’s lack of objection. Once that has occurred, the referral arrangement cannot be changed at a later time by the client. If all that is done, the issue really becomes a contract issue between the two lawyers. •

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.