Waiving Good-Bye to a Fundamental Right: Allocation of Authority between Attorneys and Clients and the Right to a Public Trial

Abstract

Only a few courts have addressed the question of whether an attorney can decide to waive a client’s constitutional right to a public trial without the client’s consent and most of them are based on the notion that attorneys have the authority to make tactical decisions. None of them, however, has offered a convincing explanation as to why a tactical decision that affects a constitutional right should be considered to be a mere tactical decision (which the attorney would have the authority to make without the client’s consent) as opposed to a decision that affects a fundamental right (which the attorney could not make without the client’s consent). This essay explains the issue and addresses the need to develop a consistent approach to the subject. It concludes that courts should find that decisions that affect constitutional rights belong to the client and that it would be improper for an attorney to make such decisions without consultation.