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

New Criminal Law Review, Forthcoming

16 Pages Posted: 15 Aug 2018  

Judith Foo

Independent

Nina Varsava

Stanford University

Elizabeth Villarreal

Yale 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 fail to provide adequate guidance in this area. In particular, we identify a tension between the importance that both the Model Rules and the case law place on client control over the “fundamental objectives” of representation, and the supposed remedy of lawyer discharge and withdrawal in the event of irresolvable disagreement between lawyer and client. We propose a set of revisions to the Model Rules that address the ethical and practical concerns we elaborate.
These revisions aim to be responsive to:
(1) the principle of autonomy that the McCoy decision prioritizes,
(2) the dynamic and sensitive relationships between criminal defense attorneys and their clients, and
(3) the administrative realities of trial courts. In the absence of clear or comprehensive constitutional doctrine, we would hope that attorneys and courts could turn to the Model Rules for sound and effective guidance in the domain of lawyer-client disagreement and dispute resolution.

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

Suggested Citation

Foo, Judith and Varsava, Nina 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

Judith Foo

Independent ( email )

No Address Available

Nina Varsava (Contact Author)

Stanford University ( email )

Stanford, CA
United States

Elizabeth Villarreal

Yale Law School ( email )

David Walchak

Independent ( email )

No Address Available

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