Allocating Authority between Lawyers and Their Clients after McCoy v. Louisiana

New Criminal Law Review, Forthcoming

28 Pages Posted: 15 Aug 2018 Last revised: 5 Apr 2019

See all articles by Nina Varsava

Nina Varsava

Stanford University

Judith Foo

Independent

Elizabeth Villarreal

Yale University - Law School

David Walchak

Independent

Date Written: June 15, 2018

Abstract

In May 2018, the Supreme Court issued its opinion in the case of McCoy v. Louisiana, holding that defendants have a constitutional right to maintain their innocence at trial. Under McCoy, lawyers may not concede their clients’ guilt during trial when their clients insist on maintaining innocence, even if doing so would be a reasonable tactical decision. In this paper, we show how the case implicates an array of common problems concerning lawyer-client disagreement, and we argue that the Model Rules of Professional Conduct offer deficient guidance in this area. In particular, in relying on lawyer withdrawal as a remedy for lawyer-client disagreement, the Model Rules neglect to recognize that lawyers may have an obligation to stick with their clients despite serious disagreements over aspects of the representation. The Rules also gloss over the considerable administrative burden associated with withdrawal. After delineating problems with the Model Rules’ approach to lawyer-client disagreement, we propose a set of revisions to the Model Rules that address the ethical and practical concerns we elaborate.

Keywords: Professional Responsibility, Criminal Procedure, Criminal Justice, Model Rules of Professional Conduct, Constitutional Law, Sixth Amendment

Suggested Citation

Varsava, Nina and Foo, Judith and Villarreal, Elizabeth and Walchak, David, Allocating Authority between Lawyers and Their Clients after McCoy v. Louisiana (June 15, 2018). New Criminal Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3224024

Nina Varsava (Contact Author)

Stanford University ( email )

Stanford, CA
United States

Judith Foo

Independent ( email )

No Address Available

Elizabeth Villarreal

Yale University - Law School ( email )

David Walchak

Independent ( email )

No Address Available

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