Capital cases require give and take between the 
lawyer and the client.

I am starting a trial in a capital murder case. I have tried many capital murder trials and have attended many seminars on voir dire in capital cases. My clients insisted on keeping one juror who I truly believe would hurt the clients’ cause, particularly on the death penalty. Can I overrule the client on this issue?

The issue poses a very difficult question because clients participate with lawyers in the jury selection process. Also, many experienced trial lawyers will recall a situation where a client insisted on a juror who the lawyer really didn’t want, and then the juror turned out to be a tremendous juror for the defense. Lawyers don’t have a monopoly on insight into human personalities. Sometimes a street-smart client can sense something that the lawyer is missing.

Having said that, the issue really comes down to who controls the jury selection process. There are some ethical areas where the client has the final say, no matter what the lawyer believes and no matter how much experience and knowledge the lawyer has. The issue really goes to the scope of representation, which is found in Rule of Professional Conduct 1.2.

Under that particular rule, a lawyer has to “abide by a client’s decisions concerning the objectives of representation.” A lawyer also has a duty to fully consult and explain everything to a client under Rule of Professional Conduct 1.4. The purpose of that is to ensure that a client understands what the lawyer is doing and how the objectives they have agreed upon are to be achieved. Rule 1.2 is very clear that a lawyer has to abide by the client’s decision as to whether to enter a plea, whether to waive a jury trial, and whether the client will testify.

These are constitutional rights where a client has the sole decision-making authority, obviously after discussing the issues with the lawyer so the client can make an informed decision. There is nothing in the rule that indicates a lawyer has to abide by the client’s decision as to a particular juror.

Comment 2 to Rule 1.2 provides some additional guidance. The comment notes that a lawyer and a client can disagree about “means to be used to accomplish the client’s objectives.” The comment notes that a client will normally defer to the knowledge of a lawyer with respect to these means. The person who wrote that comment probably never dealt with clients discussing with jailhouse lawyers who do not defer to a lawyer’s decision.

The comment further notes that lawyers will defer to a client’s question as to expenses that might be incurred and concerns about third parties that might be affected. But the comment does not indicate how to resolve any disagreements. The comment does note that a client can discharge a lawyer if there is strong disagreement. Of course, at the stage of jury selection, few judges are going to allow a lawyer to be discharged as the trial is in progress. Under Rule 1.16, a lawyer should withdraw representation if the lawyer is discharged by the client. Of course, that is tempered by the fact that the lawyer has to get court approval if the lawyer’s appearance is entered of record.

In evaluating what to do when there is this dispute, one framework to consider is the distinction between tactical decisions and strategic decisions. As noted, the strategic decision, such as objectives, are more in the client’s realm and the client normally has the ultimate say. But tactical decisions are usually within the lawyer’s decision-making process.

Whether to object to a question or to the introduction of evidence is normally a lawyer’s decision. If a client wants the lawyer to object, but the lawyer realizes the client is wrong or that the objection is against the game plan developed, then the lawyer can refuse to do so. Further, every lawyer knows clients will send notes to ask certain questions. Sometimes, these questions will undermine the entire case or the point the lawyer was trying to make during cross-examination. The lawyer normally has the right to refuse to ask questions the lawyer thinks would hurt the case. Again, this falls under the concept of tactical decisions.

But the selection of a juror is an interesting decision, because ultimately the client is the one who has to live with the jury verdict. The lawyer goes home after the case is done. Therefore, many lawyers will attempt to dissuade a client from accepting a juror the lawyer really believes will hurt the client’s cause. But many lawyers will ultimately acquiesce if the client insists because of this fundamental concept that the client is the one who ultimately will have to live or die with the verdict. Whether that is a wise decision of a lawyer remains to be seen, but it is not necessarily an uncommon practice.

Therefore, it seems that the selection of a juror would probably fit in the tactical area in most cases. But in the capital murder trial, there may be a different answer. It depends on the context. Some very experienced capital trial lawyers focus more on the death penalty issue as opposed to the guilt or innocence issue. In other words, the entire jury selection process is geared to find out who is truly more inclined to life as opposed to more inclined to a death verdict.

It is also geared to ensure that a juror can be empowered to vote for life not withstanding the other juror’s disagreement. The issue becomes whether there is a real disagreement between the client and the lawyer on the objectives. The client may not care about the death penalty, but the client wants to win on the guilt or innocence. The client may take the position, wrongfully so, that if he or she is going to lose, he or she would rather have death than life imprisonment. Of course, there are other ethical issues on that point, which will be discussed another time.

But if the objective of the client is a not guilty verdict or a lesser form of homicide, such as voluntary manslaughter, while the primary objective of a lawyer is to avoid the death penalty, that could create a difficult situation. Under those facts, if a client believes the juror might be better suited for a guilty or not guilty verdict, as opposed to death or not death, who has the final say?

This is a very difficult issue, because anyone who tries death penalty cases knows that jurors who are more inclined to life are also jurors who are more willing to vote not guilty or to a lesser form of homicide if the evidence is there.

There is really no answer to this very difficult question. But the key point is that the lawyer has to be aware of this and clearly discuss these issues with a client under Rule 1.2 and also under Rule 1.4 requiring detailed consultation with a client for these decision-making processes.

The bottom line is normally jury selection is a tactical decision, but if the jury selection process somehow could clearly impact the ultimate objective of the case, then the jury selection process may be more than tactical — it may be strategic, where the client might have the final say.

Every wise lawyer will clearly document these conversations with a client and the decision-making process. Oftentimes, these issues can be resolved because the client will listen at times to a lawyer who doesn’t talk down to him or her or pretend the lawyer knows best. But this is a difficult and critical area and every lawyer should be aware of the distinctions between tactical and strategic decision-making and the different roles a client plays depending on the category.

Lawyers can sell non-legal services to a client, but ethical landmines abound.

I am trying to make some extra money and I have obtained an insurance license. May I sell life insurance to my law clients?

The question is a good one. It seems, to some extent, unseemly to be selling insurance to one’s clients, particularly out of the law office. There may be serious issues of conflict of interest.

The first rule to look at is Rule of Professional Conduct 5.7, which deals with a lawyer also providing non-legal services. This is an important rule for any lawyer who does provide non-legal services. The importance of the rule is it defines when an attorney is governed by the Rules of Professional Conduct in his or her non-legal business. Under Rule 5.7(a), a lawyer who provides direct, non-legal services, which aren’t distinct from legal services, is subject to the Rules of Professional Conduct.

Under Rule 5.7(b), a lawyer who provides non-legal services that are distinct from the legal services is still bound to the rules if the lawyer knows or should know that the client may believe that the attorney-client relationship still exists.

In addition, the lawyer would also have to comply with Rule of Professional Conduct 1.8. Under that rule, a lawyer who is doing business with a client has to provide a series of warnings to the client. The lawyer must advise the client in writing of the conflict in doing business. The lawyer must tell the client to have an independent lawyer review the arrangement. The client then has to waive any conflict in writing.

The Philadelphia Bar Association’s professional guidance committee, in a divided decision in Opinion 2003-16, held it was acceptable for a lawyer to sell insurance out of the law office. This opinion was written in 2004. But the opinion was sharply divided. This opinion is now more than eight years old and with the trend to more lawyers being involved in non-legal business, it would be interesting to see if the dissent would still be written.

But to answer the question, a lawyer can provide the non-legal services of selling insurance out of the lawyer’s office, but the lawyer must recognize that he or she will be bound by the Rules of Professional Conduct under those circumstances unless the lawyer, under Rule 5.7(d), makes reasonable efforts to ensure there is no misunderstanding by the client.

It must be made clear to the client that the selling of insurance is not a legal service. Otherwise, the Rules of Professional Conduct would apply and the lawyer would be at a disadvantage, at least compared to other agents selling insurance. That is why it is so important for lawyers who are providing non-legal services in addition to their legal services to make certain when the Rules of Professional Conduct apply and when they do not and take steps to ensure the rules don’t apply to certain non-legal services if they wish to remain competitive.

Also, any business done with a client must result in Rule 1.8(c) disclosures and waivers in writing.

Lawyers and non-legal businesses unfortunately are a growing trend because of the poor financial returns of many law 
practices. But every lawyer should remember that law is a demanding business 
and sufficient time must be allotted to the law practice to ensure competent representation of clients. •

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