Every professional wants to be the boss. Every doctor who recommends a particular treatment wants her patient to do what she recommends. And, of course, every lawyer wants his client to follow his advice. It’s natural—the professional is the professional in the relationship and it makes complete sense that, if he gives advice, the individual who comes to him for that advice should take and follow it. Some lawyers are extremely aggressive in trying to get the client to adhere to their advice, some less so. It’s often a matter of personal philosophy, style, demeanor and skills of persuasion, and it will necessarily vary from one lawyer to the next.
Nonetheless, of course, it doesn’t always happen that the patient or client will listen, for a whole host of reasons. Perhaps the professional advice is too humiliating to follow. Maybe it’s too hard, or the patient or client is too lazy or undisciplined to do what is recommended. Or, it is even possible that the patient or client has a hidden or overt agenda that motivates him, and the professional can’t seem to pierce or overcome that motivation. Maybe, the client is simply a contrarian. And maybe, the patient or client is moved by a matter of the heart—he refuses to deny a loved one the possibility of receiving his kidney (even when the chances of successful transplant are remote), or adamantly refuses to give evidence against the loved one even though to do so would be a complete defense to charges against him.
But, while advice techniques of physicians may be interesting to analyze in this context, let’s talk about lawyers only—criminal lawyers, in particular. They absolutely do have a veto power—an absolute veto power—over certain strategies under consideration by the client. The client simply can’t effectively demand that the lawyer commit an illegal or unethical act in furtherance of representing the client.1 Nor can the client, who has admitted to the lawyer his guilt of the offense for which he has been indicted, successfully demand that the lawyer put him on the witness stand and be directly2 questioned by the lawyer in order to tell the false story he proposes to tell. That being said, putting aside the lawyer’s veto over calling the client to tell a false story,3 it is absolutely the client’s decision, and his alone after consultation with his attorney, whether or not to testify.4
Just as it is also the client’s decision, and his alone, whether to plead guilty or go to trial.5 Although the lawyer’s advice and persuasive powers as to that advice are key, the client has total autonomy over those particularly critical decisions that bear on his defense. And surely, that’s the way it must be, however unpleasant it may be for the experienced lawyer to know that the client’s proposed strategy may be suicidal!
Accepting an Immunity Offer
A case recently tried in the Southern District of New York,6 albeit not in the context of the client being a defendant at the trial, exposes how the issue may arise.7 The government had been conducting a criminal investigation into the election campaign of New York City Comptroller John Liu.8 Partly in an effort to establish a conspiracy, the United States Attorney indicted Jia "Jenny" Hou, Liu’s former campaign manager, and Xing Wu "Oliver" Pan, a longtime campaign contributor to Liu.9 The nub of the criminal claim was that, in the Liu campaign’s efforts to receive campaign funds, it allegedly used straw donors to act as actual donors. The fundraisers would reimburse the straw donors and thereby be able to contribute more money than would otherwise be allowed or matched.10
In advance of trial, Sharon Lee, a senior adviser to Liu and former campaign spokeswoman, was interviewed and later called by the prosecutors to testify against the charged defendants.11 At trial, she began to testify on direct examination that she in fact had offered her mother, her aunt and three friends that if they donated to the Liu campaign, she would personally reimburse them—facially a crime under New York’s campaign finance law (although the alleged wrongdoing never came to fruition because Lee never reimbursed anyone). Earlier, after the government had indicted Hou and Pan, the prosecutors had actually identified Lee in court as an unindicted coconspirator.12 Meaning, at least to the prosecutors, she had potential criminal liability.13
While members of the defense bar might tell you that the government occasionally labels an individual an "unindicted coconspirator" simply as a strategic vehicle to help admit certain evidence against defendants on trial, every defense lawyer would tell you that being branded an "unindicted coconspirator" is generally reason for the individual to invoke the Fifth Amendment and insist on immunity.
Lee’s trial testimony of course didn’t come out of the blue. As early as February of this year, it became clear on the record that Lee, a young woman lacking experience in a legal setting, had actually been offered immunity for that testimony,14 but declined it—the gist being "I didn’t do anything wrong, so I don’t need it." Surprising, at least to this commentator—for when I was a young prosecutor I asked an estimable criminal defense lawyer to bring in his client for an interview. Given that I was offering that witness no immunity protection whatsoever, he declined: "If I were representing Jesus Christ himself, I would insist on immunity for him!" So why did Ms. Lee—or was it her lawyer?—not take the prosecutors up on their offer to accord her immunity protection, not to mention actually demanding it in the first place?
Did counsel try to persuade her, and fail? Was there some strategic reason for her to decline—perhaps revealing to the jury that she sought such protection would hurt her reputation, thereby suggesting to her community that she believed she had committed a crime? Perhaps she believed that it would hurt the defendants at trial for the jury to hear that their Liu campaign colleague believed that she needed Fifth Amendment protection? Perhaps she believed that Comptroller Liu himself would be injured in the public eye if she took the Fifth Amendment. Or maybe, someone with an interest or sympathy at stake "leaned" on her because Lee’s assertion of the Fifth Amendment would harm someone else, whoever that might be.
We shall probably never know, that is at least unless Lee is herself indicted. After all, her extremely able attorney, whom we sought to interview for this piece,15 appropriately declined to answer our questions, given his twin duties of confidentiality and loyalty—although the court record makes clear that counsel fully explained to Lee, as did the judge himself later, the risks associated with refusing Fifth Amendment protection.16 Notably the prosecutor, in response to the judge’s inquiry, explained that the government believed that Lee’s proposed testimony would be perjurious and that it behooved her to accept the immunity offer (although the use immunity grant, meaning immunity just for the testimony she gave and not a broader immunity for the criminal transaction itself, would not protect her from a perjury charge).
Rules of Professional Conduct
Put aside the "Lee" matter, as it may at day’s end amount to nothing more than a footnote in the Liu investigation. Let’s focus on the core question: Who should decide whether to insist on or accept an immunity from the government—the client or her attorney?
The New York Rules of Professional Conduct are not particularly helpful. Rule 1.2 ("Scope of Representation and Allocation of Authority Between Client and Lawyer"), aside from addressing the client’s right to decide how to plead, whether to waive a jury and whether to testify, only says that the lawyer shall abide by the client’s decision concerning the "objectives" and consistent with the requirement of communicating with the client, shall consult with the client concerning the "means" by which they are pursued.17 In other words, it’s the client’s decision if "objectives" are at stake, and the lawyer’s decision, after he reviews it with the client, if it’s about "means." But what does that distinction mean?
Some academic authority argues that "[far] too often, professional attitude, rather than serving to enhance individual autonomy… serves to strip people of autonomy and power. Rather than encouraging clients and citizens to know and control their own options and lives, the legal profession discourages client participation and control of their own legal claims."18
While that is an interesting thought worthy of an academic discourse, it would be extremely foolhardy for a criminal lawyer, who typically deals in crisis situations, to simply present the options to a client and say "you choose," in a circumstance when criminal lawyers would almost unanimously recommend one way, lest the client fatally expose himself if he chooses alternately. Where such a situation presents itself, the lawyer would be better advised to tell the client in these words or others: "Client, any lawyer with a brain would tell you to do what I’m telling you. You would be nuts to act otherwise!"
Interestingly, in his dissent in Jones v. Barnes,19 Justice William Brennan said that "[t]he role of the defense lawyer should be above all to function as the instrument and defender of the client’s autonomy and dignity in all phases of the criminal process"20—and that the "assistance" of counsel is just that. The lawyer is an expert, to be sure—but still, an assistant.21 The revered Justice Brennan, thus, seems to share the academic’s view.
Returning to Lee, few experts, if any, would say that deciding whether to accept an immunity offer, assuming she is adequately counseled on the merits, is not the client’s decision. What was unusual about this was that attorneys for both the government and the witness, and the judge himself, seem to have encouraged her to accept immunity. Still, no Sixth Amendment right would have been implicated here—Lee might have been a target of the government’s investigation, but she hadn’t been charged with a crime or been in custody. Yes, it would have been counsel’s duty to explain to his client why her chosen course would have been imprudent. Nonetheless, the decision would finally have been hers.
All that said, People v. Colville22 is worth noting. In the context of a second-degree murder trial, the trial judge had agreed with the defense attorney who wanted a lesser included charge submitted to the jury, but denied it only because Colville opposed it. On appeal from Delroy Colville’s conviction, the New York Court of Appeals, in a divided 4-3 split decision, reversed the conviction, holding that the defense’s decision whether to seek a lesser included charge was too important to deny the defendant "the expert judgment of counsel to which the Sixth Amendment entitles him."23 This is interesting—in the court’s judgment, a lesser charge submission was akin to a decision whether the defendant should plead guilty, a decision for the client to ultimately make. So why, then, did the Court of Appeals hold that the lesser charge decision should be in the hands of counsel, not the client?
Is there a lesson from an amalgam of "Lee" and Colville—does it give us greater insight as to when a strategic decision rests with the lawyer, not the client? Probably not. The distinction between "means" and "objectives" is too amorphous.
At bottom, when a client proposes what the lawyer sees as senseless (whether one calls it a "means" or an "objective"), the lawyer must redouble his efforts to take the necessary measures to show the client, in real time, the error of his approach.
The client should always call the shots, or at least approve them. Yes, if the attorney’s strategy that was reluctantly acquiesced in by the client turns out badly, the attorney will likely face blowback from a disgruntled client, perhaps in civil or habeas litigation claiming that the client was wrongfully persuaded to change his mind. The price for having cajoled the client to take our best advice is something we must occasionally weather as true professionals.
All this said, sometimes the client may decide to act due to a personal or moral imperative that he feels should supersede the lawyer’s professional—even indisputably correct—advice. Difficult as it may be to watch the client take Robert Frost’s "road [that should] not [be] taken," that remains his right and even our duty to abide, even notwithstanding a "rule" that might suggest that the decision is really ours. If a lawyer thinks the client’s decision is suicidal, he always does have the ability to try to withdraw, painful as that too might be.
Joel Cohen, a former federal and state prosecutor, is of counsel at Stroock & Stroock & Lavan, and teaches professional responsibility at Fordham Law School. Dasha Bril, a law school graduate at Stroock awaiting admission to the bar, assisted in the preparation of this article.
1. Rule 1.2(d), New York Rules of Professional Conduct.
2. Rule 1.2(d), New York Rules of Professional Conduct; see also Harris v. New York, 401 U.S. 222, 225 (1971); People v. DePallo, 96 N.Y. 2d 437, 443 (2001).
3. Rule 1.2(a), New York Rules of Professional Conduct; see also Nix v. Whiteside, 475. U.S. 157, 173 (1986).
4. Not so, by the way, in deciding to call a defense witness if the lawyer believes that the witness will commit perjury. Rule 3.3(a)(3), New York Rules of Professional Conduct ("A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false").
5. Rule 1.2(a), New York Rules of Professional Conduct.
6. United States v. Pan, 1:12-cr-00153 (S.D.N.Y.) (Sullivan, J.).
7. The author’s firm was briefly appointed on behalf of the candidate to conduct an independent investigation into alleged improprieties in the Liu campaign.
8. Michael Barbaro, "Liu Denounces Inquiry Into His Fund-Raising," N.Y. TIMES, March 1, 2013, at A19.
10. Benjamin Weiser, "At Trial, Liu Aide Tells of Offering to Reimburse Campaign Donors," N.Y. TIMES, April 25, 2013, at A26.
11. Transcript of 4/15/2013, U.S. v. Pan, 1:12-cr-00153 (S.D.N.Y.) (Sullivan, J.); Benjamin Weiser, "Trusted Deputy to Liu May Be Called in Trial," N.Y. TIMES, April 16, 2013, at A22.
12. Transcript of 4/15/2013 at 8.
14. Transcript of 4/25/2013 at 926-927, United States v. Pan, 1:12-cr-00153 (S.D.N.Y.) (Sullivan, J.); Benjamin Weiser, "At Trial, Liu Aide Tells of Offering to Reimburse Campaign Donors," N.Y. TIMES, April 25, 2013, at A26.
15. Telephone Interview with Andrew Lankler (April 28, 2013).
16. Transcript of 4/25/2013 at 926-927.
17. Rule 1.2(a), New York Rules of Professional Conduct; see also STEPHEN GILLERS ET AL., REGULATION OF LAWYERS 987-988 (2013) ("On occasion, however, a lawyer and client may disagree about the means to be used to accomplish the client’s objectives. Because of the varied nature of the matters about which a lawyer and client might disagree, and because the actions in question may implicate interests of a tribunal or other persons, this Rule does not prescribe how such disagreements are to be resolved. Other law, however, may be applicable and should be consulted by the lawyer. The lawyer should also consult with the client and seek a mutually acceptable resolution of the disagreement.")
18. Sylvia Law, "Afterword: The Purpose of Professional Education," in LOOKING AT LAW SCHOOL 205, 212-213 (Stephen Gillers ed., 1977); see generally MONROE FREEDMAN and ABBE SMITH, UNDERSTANDING LAWYER’S ETHICS 45-66 (4th ed. 2010) for an excellent discussion of this topic.
19. Jones v. Barnes, 463 U.S. 745, 763 (1983) (Brennan, J., dissenting).
22. 20 N.Y. 3d 20 (2012).
23. Id. at 32.