Clients sometimes instruct their lawyers to take actions, or refrain from taking actions, that a reasonable lawyer knows is likely to set back the client’s defense. Examples include instructions to waive pursuing motions or appeals, not to pursue certain lines of mitigation investigations, to refrain from investigating Atkins claims, or not to present evidence of intellectual disabilities. These situations present profound dilemmas for defense lawyers. The standard approach to the lawyer-client relationship emphasizes the client’s right to define the objectives of the representation and make informed decisions regarding the means by which the representation will be carried out. However, in many cases the capacity of clients to participate in a meaningful way in the decision-making process is limited by developmental disabilities, mental illness, substance abuse, or other factors. In these cases, the lawyer cannot assume that the standard approach is the right one to follow.
The Supreme Court’s McCoy decision does not prescribe an approach to follow in hard cases. The Court treated the case as one falling within the standard decision-making approach, with no consideration of whether the defendant’s decision making capacity was diminished. The Court ignored the problem of “gray zone” competency under Indiana v. Edwards. More importantly, for the purposes of this session, it ignored the separate body of law governing lawyers, which defines the ethical obligations of counsel over and above Sixth Amendment minimums. While adding in state rules of professional conduct and other aspects of the law of lawyering does not necessarily provide clear answers, it goes beyond McCoy in in important ways to guide counsel in handling these difficult situations.
