Oregon State Bar Bulletin — DECEMBER 2006
Bar Counsel
Who Decides?: The lawyer, the client or the court?
By Chris Mullmann

Since the Oregon Supreme Court adopted the Oregon Rules of Professional Conduct on Jan. 1, 2005, lawyers in the OSB general counsel’s office have written and talked often with various groups of lawyers around the state concerning a number of issues raised by those rules.

A new twist recently arose in a request for an informal written opinion that sheds some light on the impact of the new rules on a lawyer’s obligation in a criminal trial. The case involved an inmate who had been recently convicted of aggravated murder after representing himself during the trial proceedings. At the time of the request, the penalty phase was scheduled to begin in about two weeks. The court had determined that the defendant had the capacity to stand trial under ORS 161.370 but also ruled that he could not represent himself during the penalty phase of the trial.

The court appointed counsel and ordered counsel to present the penalty phase of the trial notwithstanding the client’s objections. The defendant then refused to cooperate with counsel regarding the case. The question addressed to our office was whether counsel could present a penalty phase of the trial over the client’s objections, or whether counsel should disobey the court’s order and abide by the client’s instructions to refuse to participate in the penalty portion of the case.

Oregon RPC 3.4 (c) commands that a lawyer shall not "knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists." In her informal written opinion Deputy General Counsel Helen Hierschbiel opined that a violation of a court order would likely constitute a violation of Oregon RPC 3.4(c), 3.3(a)(5) and/or 8.4(a)(4). The Oregon Supreme Court has ruled that a violation of DR 7-106(A) (the former Code’s counterpart to RPC 3.4(c)) occurs when a lawyer disregards a tribunal’s ruling made in the course of a proceeding, unless the lawyer’s action amounts to "appropriate steps in good faith to test the validity of the ruling." In re Rhodes, 331 Or 231, 235 (2000). If the lawyer has a reasonable and good faith basis to assert that no valid obligation exists under the court order, the lawyer may be able to disregard the court’s order without running afoul of the rules of professional conduct.

If the lawyer concludes that no valid obligation exists under the order (a questionable position at best, in my opinion) the question becomes whether the rules of professional conduct require the lawyer to follow the client’s directive to not present a penalty phase in the case. This turns on the lawyer’s obligations under Oregon RPC 1.1 and 1.2(a).

Oregon RPC 1.1 requires that lawyers provide competent representation to their clients. The ABA Guidelines for the Appointment and Performance of Defense Counsel in Death-Penalty Cases 10.7 make clear that the defense lawyer has a duty to conduct a thorough investigation into mitigating evidence available for the penalty phase proceeding. That duty may not be avoided based on a client’s directive that the lawyer not present any mitigating evidence. Silva v. Woodford, 279 F3d 825, 838 (2002). A client cannot make an informed decision about whether to present a case for mitigation unless a complete investigation has been conducted and conveyed to the client. Therefore, the informal opinion concluded that regardless of what the client might say about the penalty proceeding, the lawyer had a duty to fully investigate the factual and legal grounds for mitigation in his case and communicate (as best as possible) the findings to the client.

At the same time, Oregon RPC 1.2(a) requires a lawyer to abide by the clients’ decisions concerning the objectives of the representation and consult with the client regarding the means to be used to pursue those objectives. The rule gives lawyers latitude to take certain actions on behalf of their clients without the specific authorization of the client. Actions that are "impliedly authorized to carry out the representation" under Rule 1.2(a) are generally characterized as strategic or tactical decisions that require the special knowledge or skills of a lawyer. Criminal cases present unique ethical considerations under this rule because a client’s right to make certain decisions is determined not only by ethics rules but by constitutional requirements. One such right is the defendant’s right to represent himself. Faretta v. California, 422 US 806 (1975). Thus, while the defendant may not have the right to direct the lawyer in every decision, he can elect to proceed without counsel and thereby reserve all decisions to himself.

The general counsel’s informal advisory opinion1 to the inquiring lawyer concluded that if a competent and reasonable mitigation investigation has been conducted, the case law suggests that whether to present particular evidence or witnesses at a penalty phase hearing is a tactical decision left to the lawyer so long as the lawyer takes into consideration the client’s ultimate objectives. The decision to waive mitigation entirely can be left to the defendant if the waiver is voluntary, informed and knowing, as required by law. Thus, any attempted waiver by the client would implicate Oregon RPC 1.4 (b), which requires a lawyer to explain a matter to a client to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Assuming the client had neither expressed a clear desire to accept the death penalty nor properly waived his right to mitigation, the lawyer was free to proceed as he felt necessary at the penalty phase hearing.

The general counsel’s informal opinion did not decide whether the facts presented actually showed an informed and knowing waiver by the client. However, for the sake of argument, it also examined the lawyer’s duties if the client had properly waived his right to mitigation. In that event, the lawyer’s duty to follow his client’s desires would be pitted against his duty to obey the court’s order. The informal opinion did not conclude that one duty was trumped by the other; instead, it suggested that the lawyer had a duty to continue to inform the court that the client specifically instructed the lawyer not to present anything at the penalty phase. If the court continued to insist the lawyer proceed despite the client’s wishes, the lawyer might advise the court that, in deference to his client’s instructions, the lawyer was presenting evidence only at the court’s directive and only that evidence that the lawyer would present if the client had asked the lawyer to do so. The evidence would serve as an educational tool for the court but not to advocate a particular result. If the client took an actively aggressive posture during the proceedings, the lawyer might find that continuing the proceedings would undermine any mitigation evidence presented. See e.g. Landrigan v. Stewart, 272 F3d 1221 (9th Cir 2001) (defendant not only refused to have mitigation evidence presented on his behalf but made statements throughout the proceedings that torpedoed his lawyer’s efforts to argue for mitigation). At that point, strategy may dictate that the lawyer proceed no further, as the lawyer may then be in the position of advancing neither the client’s wishes nor his best interests.

While the informal written advisory opinion discussed here was directed at a narrow set of facts, it is illustrative of the interaction of various rules and duties a lawyer faces when the client is insisting on a particular course that, in the lawyer’s or court’s opinion, is unwise. A lawyer must abide by the client’s objectives but may decide how to accomplish those objectives. However, determining what decisions must be left to the client and what decisions may be left to the lawyer is not always straightforward or easy. The opinion also reveals the importance of clear and persistent communication with the client. The communication rule, Oregon RPC 1.4, is broader than the scope of RPC 1.3 (Diligence) and requires that a lawyer keep the client "reasonably informed" about the matter and "promptly comply with reasonable requests for information." Further, RPC 1.2(a) requires the lawyer to consult with the client about the means used to pursue the client’s objectives. Therefore, while some lawyers may be tempted in a particular situation to simply ignore their client’s directions because "they know better," such a position may run afoul of the rules of professional conduct.

1. See Oregon RPC 8.6 regarding the effect of an informal written advisory opinion from General Counsel’s Office.

Chris Mullmann is assistant general counsel and manager of the Client Assistance Office for the Oregon State Bar. He can be reached at (503) 620-0222 or toll-free in Oregon at (800) 452-8260, ext. 392, or by e-mail at cmullmann@osbar.org.

© 2006 Chris Mullmann

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