Understanding the Attorney-Client Relationship in a Criminal Case

Section I. Confidentiality

1. Can a lawyer repeat what I say to anyone without my permission?

No, with one important exception (which is discussed below). The most basic principal is that lawyer-client communications are privileged, or confidential. This means that lawyers can't reveal clients' oral or written statements (nor lawyers' own statements to clients) to anyone, including prosecutors, employers, friends, or family members without their client's consent. It matters not whether defendants confess their guilt or insist on their innocence – attorney-client communications are confidential. Both court-appointed attorneys are equally bound to maintain their clients' confidences.

2. I discussed my case with my attorney in a restaurant, loud enough for other diners to overhear me. Can they testify to what I said?

Yes. Lawyer-client communications are confidential only if they are made in a context where it would be reasonable to expect that they would remain confidential. (Katz v. U.S., U.S. Sup. Ct. 1967.) A loud-mouth defendant who talks to a lawyer in such a loud voice that others overhear what is said has no reasonable expectation of privacy and thus waives (gives up) the privilege.

3. Are conversations I have with my attorney while I'm in jail considered confidential?

Jailhouse conversations between defendants and their attorneys will be considered confidential as long as the discussions takes place in a private portion of the jail and the attorney and defendant do not speak so loudly that jailers or other inmates can overhear what is said. Also, defendants must be very careful not to allow jailers or other prisoners to overhear what they say on the telephone. These people sometimes eavesdrop, in person or on the telephone, and then claim that they were able to overhear incriminating information because the defendant spoke in a loud voice. (Inmates often try to curry favor with prosecutors through such tactics.) If a judge believes them, the privilege is lost and the jailer or other prisoner can testify to the defendant's remarks.

4. I'd like my mom (best friend, etc.) to be present when I talk to my attorney. Does that mean that our conversation won't be considered confidential?

Quite possibly. Defendants who bring strangers (people who are not part of the attorney-client relationship) into a meeting risk losing the right to claim as confidential what is said during the meeting. This means that the prosecutor might be able to ask the stranger or even the defendant about what was said during the conference. However, the lawyer can maintain the privilege by convincing a judge that it was necessary to include the stranger in the conversation.

5. If I repeat what I told my lawyer to someone else, is my conversation with my lawyer still considered confidential?

No. Blabbermouth defendants waive (give up) the confidentiality of a lawyer-client communications if they disclose those statements to someone else (other than a spouse, because a separate privilege exists for spousal communications). Defendants have no reasonable exception of privacy in conversations they have with others.

6. Can I have my lawyer confidentially hold on to stuff that I don't want the police to know?

Usually, no. A defendant may want his or her lawyer to hold on to an incriminating tangible object, such as a knife that was used in a stabbing, or documents showing income that the defendant failed to report to the IRS. Because what they say to their lawyers is supposed to be confidential, many defendants assume that they can keep the police from seizing objects by turning them over to their attorneys. However, if an object is an instrumentality of a crime (the means use to commit a crime, such as a knife used in a stabbing), a lawyer must turn it over to the police. Defendants can't conceal instrumentalities of a crime by giving them to their attorneys.

7. I told my lawyer about my plan to commit a crime in the future. Does my lawyer have a duty to keep my statement confidential?

No. The confidentiality of attorney-client communications usually does not extend to statements pertaining to future crimes. The government can compel a defense lawyer to testify to a client's statement pertaining to a future-crime. In emergency or life-threatening situations, a lawyer might have to reveal such a statement to the police even before a crime is committed.

8. Is a fact that the defendant has met with an attorney considered to be confidential?

No, attorney-client confidentiality mainly extends to communications, so details such as the following are normally not considered confidential:

• The dates and times of the attorney-client meetings;
• The identities of people who were present during such meetings; and
• The amount of the attorney's fees and who paid for it.

Prosecutors do not routinely seek such information. Relevance is often limited to conspiracy cases, when a prosecutor wants the information to show that a number of people were part of the same conspiracy. When the information is relevant, attorneys usually must disclose it upon request.

Section II. Client-Centered Decision-Making

This section is about who makes what decision in the course of a criminal case.

9. Should I expect my lawyer to involve me in important decision?

Yes. The lawyers' ethical responsibilities require that they involve clients in the decision-making. For example, Rule 1.4 of the ABA Model Rules of Professional Conduct states that, "A lawyer shall explain a matter to the extent necessary to permit the client to make informed decisions regarding the representation." Moreover, Standard 4-5.2 of the ABA Standards for Criminal Justice lists a number of decisions that "are to be made by the accused after full consultation with counsel." (See question 10.)
Don't be fooled by movie and TV defense attorneys who often say things to clients like, "Do it my way or else." As lawyers' ethical codes recognize, cases belong to defendants, not their attorneys. It is always the client, not the attorney, who pays a fine or serves the time. Thus, defendants have the right to have input into important case decisions.

10. How do I know which decision are important ones?

Standard 4-5.2 of the ABA Standards for Criminal Justice identifies decisions that are for defendants to make after consultation with their attorneys. They include:

• What plea to enter (usually, guilty or not guilty);
• Whether to accept a plea bargain;
• Whether to waive (give up) a jury trial;
• Whether to personally testify at trial; and
• Whether to appeal.

Decisions about these matters are entrusted to clients not only because lawyers normally have time to consult with their clients before the decisions are made. "Consultation" is a key term. Before making any decision, defendants should insist on meeting with their attorneys to review their options and the likely consequences of each.

11. Are there other decisions that I should think about making?

Because each case is unique, no bright dividing line separates important decisions that are for defendants to make from other decisions that lawyers can be expected to make. Generally, a decision is important if it is likely to have a substantial legal or non legal impact on a client.
Two lawyers handling the same case may sometimes reasonably disagree about whether to leave a particular decision to the defendant. In the final analysis, defendants who want to make as many potentially important decisions as possible should do the following:

• Repeatedly tell their attorneys that they want to participate in the decision-making whenever feasible;
• Include in their lawyers fee agreements a clause allocating decision-making to the defendant whenever feasible;
• Insist that their lawyers counsel them with respect to their alternatives, and the likely consequences of each; and
• Match deeds to words by making decision expeditiously as the opportunities arise.

12. If it's my case, why can't I make all the decisions?

It simply isn't feasible for defendants to make all the decision regarding their cases. Some decisions, such as how to question potential jurors, involve attorneys' professional craft and, because of the extemporaneous nature of that procedure, are largely beyond the control of the defendants. Similarly, in the heat of a trial, attorneys often can't turn over to their clients decision about what questions to ask or objections to make.
Nevertheless, Standard 4-5.2 does identify some trial-related decisions that defense attorneys should make only after consultation with clients, provided that time permits. These decisions include:

• What witness to call;
• Whether and how to cross-examine prosecution witnesses;
• What trial motions to make; and
• What evidence to introduce.

Many attorneys think these decisions should be entirely in their hands. Thus, clients who want a voice in as many decisions as possible should discuss their wishes with their attorneys at the outset of the case.

13. My lawyer is urging me to accept a plea bargain; I want to go to trial. What gets to make the decision?

When lawyers and defendant can't agree about an issue as fundamental as whether to go to trial, generally, the defendant's decision which prevails. Assuming that a defendant's decision is neither unethical nor illegal ('My decision is that you should bump off the prosecution witness"), the lawyer is the defendant's agent and must either carry out the defendant's decision or convince the judge to let him withdraw from the case. Defendant should expect lawyers in such circumstances to prepare documents which explain that the defendant voluntarily chose to ignore the attorney's advice. The lawyer will do this to protect against later claims of incompetence.

14. I want to propose a plea bargain. Does my lawyer have to present it to the prosecutor? And does my attorney have to tell me about the prosecutor's counter-proposal?

Like the decision about whether to go to trial, decisions about whether to offer or accept plea bargains are for defendants to make. To enforce this right, defense attorneys are ethically required to:

• Relay their client's offer to plead to the prosecutor; and
• Relay the prosecutor's offer to accept a particular plea to their client.

It doesn't matter that the defense attorney believes the defendant's offer won't be accepted, or that the prosecutor's offer is unacceptable.

15. What information do I need to intelligently decide whether to plead guilty or make other important decisions?

Before making an important decision in the case, the defendant is entitle to know what alternatives are reasonable available, and so far as can be predicted, the likely consequences of each. For example, assume that the defendant is charged with assault with a deadly weapon. The defense attorney tells the defendant, "The Prosecuting Attorney is willing to accept a guilty plea to simple assault and recommend a sentence of six months in county jail and a fine of $500. The decision is yours – what do you want to do?
The defendant's response should be something like, "Let's see what my options are, and try to figure out the likely consequences of each one." Here, the defendant and the attorney should readily identify at least three possible options:

• Plead guilty now;
• Plea guilty later; or
• Refuse to plead guilty and go to trial.

Before making a decision, the defendant and attorney should discuss the likely consequences of each option. For example, the defendant may ask questions such as:

• "Is there a chance that I'll get a better deal if I wait until close to the trial to plead guilty?"
• "What sentence am I likely to receive if I go to trial and I'm convicted of assault with a deadly weapon?"
• "I'm trying to get a job. Do you think a conviction for assault with a deadly weapon will look worse than one for plain assault?"

Defendants should not count on having perfect information about the likely consequences of each option. For instance, a defense attorney may have to respond to Question No. 2 by saying, "It's really hard to predict what sentence you'll receive if you're convicted of assault with a deadly weapon. The judge who we've been assigned to is very unpredictable, and a lot will depend on the recommendation in the probation report that will be prepared after you enter your plea."
Nevertheless, only if the attorney reviews in as much details as feasible the likely consequences of all available options can defendants be assured of making the most responsible decision possible.
To make sure that they carefully consider their options and consequences before making a decision, defendants should write them down. Make a heading for each option and, underneath, note the likely consequences of each option.

16. Can my attorney properly offer an opinion as to what I should do, even if it's my decision to make?

Yes; attorneys have a professional obligation to offer "candid advice." (Rule 2.1, ABA Model Rules of Professional Conduct.) Attorneys should offer their best professional judgment, not simply tell defendants what they want to hear.

17. My lawyer threatened to withdraw from the case if I did not follow the lawyer's advice. Can a lawyer do that?

Occasionally, lawyers and defendants have such strong opposing views that they lawyer cannot effectively carry out the defendant's desired strategy. In such a situation, the attorney may seek to withdraw as the defendant's counsel or the defendant may seek to have the attorney replaced. Whether this will be permitted in either case depends on whether the defendant will be prejudiced or the proceedings will be unnecessarily delayed or disrupted.

18. I hired a private lawyer to represent me, but cannot continue paying him. Can the lawyer withdraw from the case over my objection?

Possibly, subject to approval by a judge. Professional rules in, many states, allow a lawyer to withdraw from the case if the client fails to pay the lawyer's fees, or if continuing to represent the client causes financial hardship to the lawyer.
However, before a judge permits a lawyer to withdraw from a case, the lawyer usually has to give a client sufficient advance warning to give the client time to hire new attorney. And a judge might not permit the attorney to withdraw at all under these circumstances:

• The attorney seeks to withdraw on the eve of trial;
• The attorney has put in so much work on a case that the client would be prejudiced by having to start all over with another lawyer; or
• The client has already paid substantial legal fees to a lawyer and is financially unable to pay additional fees.

Section III: Lawyer-Client Communication

This section covers the ethical rules that govern the degree to which lawyers must keep their clients informed about the progress of the case

19. Does my lawyer have to keep my informed about my case?

Yes, defendants frequently grouse to friends after a case is over the "my lawyer didn't tell me what was going on." To prevent this from happening, defendants should insist that their lawyers adhere to their ethical obligation to inform them about the progress of cases.
As defined by ethical rules, a lawyer's duty to keep clients informed has two primary components:

• To advise the defendant of case developments (such as prosecutor's offered plea bargain or locating an important defense witness), and
• To respond reasonably promptly to a defendant's request for information.

20. My lawyer thinks that I am being kept reasonably informed about my case. I disagree. What is going on?

Without labeling either party to the relationship "wrong," lawyers and client usually have different perspectives on the lawyer's duty to inform the defendant of case developments.

21. What can I do to make sure my lawyer communicates with me?

The duty to keep clients informed rests on attorneys, not clients. But on the theory that is the attorney screws up it's the client who usually suffers, here are a few steps that defendants can take to try to secure effective communication with their lawyers:

• Establish, in advance, clear understandings about case updates. If an attorney's practice is to initiate contact only when a development occurs, the attorney should indicate that to the client at the outset of the representation. If a client wants (and can pay for) regular updates regardless of whether developments have taken place, that too can be spelled out in advance—even included in a written retainer agreement.
• A defendant who phones his or her attorney with a request for information can indicate a willingness to speak with the lawyer's associate, secretary or paralegal. The lawyer must be too tied up on other cases to return the call personally, but may have time to pass the information to through an assistant. And because some lawyers have poor communication skills, the information coming from an assistant may be superior to what would have come from the lawyer.

Section IV: Representing Guilty Defendants

This section is about how lawyers handle the sometimes onerous task of representing a defendant that lawyer knows is guilty of the crime.

22. Call my lawyer represent me if he or she knows I'm guilty?

Yes. Defense attorneys are ethically bound to zealously represent all clients, the guilty as well as innocent. (See Canon 7, ABA Model Code of Professional Responsibility.) Perhaps no one has ever put the duty as eloquently as Henry VIII's soon-to-be-beheaded ex-Chancellor Sir Thomas More, who before going to the scaffold insisted, "I'd give the Devil benefit of law, for mine own safety's sake." A vigorous defense is necessary to protect the innocent and to ensure that judges and citizens and not the police have the ultimate power to decide who is guilty of a crime.
Another way of looking at this is that the defense lawyer almost never really knows whether the defendant is guilty of a crime he or she is charged with. Because the defendant says he did it doesn't make it so. The defendant may be lying to take the rap for someone he wants to protect, or may be guilty, but guilty of a different and lesser crime than the one being prosecuted by the prosecuting attorney. For these reasons, among other, many defense lawyers never ask their client if they committed the crime. Instead, the lawyer uses the facts to put on the best defense possible and leaves the question of guilt to the judge or jury.

23. If my lawyer knows I'm guilty, can my lawyer ague at trial that I should be found not guilty?

Yes. The key is the difference between factual guilt (what the defendant did) and legal guilt (what a prosecutor can prove). A good criminal defense lawyer asks not, "What did my client do?" but rather, "What can the government prove?" No matter what the defendant has done, the defendant is not legally guilty until a prosecutor offers enough evidence to persuade a judge or jury to convict. However, the defense lawyer must not lie to the judge or jury by specifically stating that the defendant did not do something that lawyer knows the defendant did do. Rather, the lawyer's trial tactics and arguments focus on the government's failure to prove all of the elements of the crime.

Section V. Competent Clients

This section is about how a defendant can help his attorney present the most effective defense possible.

24. What is a competent client?

Competent clients share in the responsibility for an effective-attorney-client relationship. Competent clients needn't possess an attorney's knowledge and skills. Instead, competent clients:

• Understand and hold attorneys to ethical duties;
• Participate in making important decisions; and
• Follow through on their attorney's advice, such as making and showing up to appointments with counselors. In the event of conviction, such activities lend support to an argument that a defendant has already begun rehabilitation.

Just as educated patients elicit information from their doctors, so do competent clients tend to receive improved legal services.

25. Can I learn any important client skills by attending court sessions unrelated to my case?

Yes. Courtrooms are public places, and defendants can learn a lot simply by taking an hour or two to watch a court in session. The defendant can examine the demeanor and dress of other defendants as well as identify what impresses them and what seems offensive. Defendants can then mirror effective behavior during their own court appearances.

26. Should I consider doing my own legal research about issues that arise in my case?

Competent clients need not play amateur lawyer or second-guess every bit of legal advice their lawyer gives. Yet a defendant should understand the charges against him or her and the basic procedures followed by the local criminal courts. The defendant can supplement what he learns in one court by checking for local variations in other courts. The defendant should also read the statutes which he allegedly has violated to ensure that he understands how the courts have interpreted those statutes.

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This document is an advertisement/information Use of this document does not create an attorney-client relationship. Any information contained within this document is not legal advice. Any results discussed within this document are not guarantees for future results.
The information contained on this document represents a legal opinion. It does not relate what the law invariably is; instead, consider this information to be a legal interpretation. However, it is not the only legal interpretation on particular matters. Legal analyses on any specific matter will vary and are also complicated by the discretion which courts possess.