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

23 NEW CRIMINAL LAW REVIEW (forthcoming Spring 2020)

Univ. of Wisconsin Legal Studies Research Paper No. 1491

28 Pages Posted: 15 Aug 2018 Last revised: 17 Oct 2019

See all articles by Nina Varsava

Nina Varsava

University of Wisconsin-Madison

Judith Foo

Independent

Elizabeth Villarreal

Yale University - Law School

David Walchak

Independent

Date Written: June 15, 2018

Abstract

In May 2018, the U.S. 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 Rules that address the ethical and practical concerns we elaborate.

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

JEL Classification: K00, K10, K15, K40, K41, K14

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). 23 NEW CRIMINAL LAW REVIEW (forthcoming Spring 2020); Univ. of Wisconsin Legal Studies Research Paper No. 1491. Available at SSRN: https://ssrn.com/abstract=3224024

Nina Varsava (Contact Author)

University of Wisconsin-Madison ( email )

United States

HOME PAGE: http://law.wisc.edu/profiles/nvarsava@wisc.edu

Judith Foo

Independent ( email )

No Address Available
United States

Elizabeth Villarreal

Yale University - Law School ( email )

David Walchak

Independent ( email )

No Address Available
United States

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