The judge looked up at me, smiled and said “Is Mr. Defendant now your co-counsel?” I smiled back, “no, judge. He is not.”

Chicago criminal defense lawyer  Marcus Schantz writes about the headache of the defendant armed with the jailhouse law library.

On the other hand, more often than not, the client begins to think he is also a lawyer. This causes a lot of problems. It forces me to spend huge amounts of time explaining why they are wrong about issues pertaining to their case. I sometimes get letters from clients laying out some legal theory that has no basis in the law. And then I have to spend an hour writing a reply letter correcting them. I suppose it’s part of the job.

Given that it’s the defendant’s life at stake, taking a serious interest in his welfare is generally an excellent choice.  That doesn’t mean, however, that the appropriate path for the client to travel is the one leading to the law library.  There is little, if anything, a defendant can offer a competent lawyer in the development of his theory of defense.  More significantly, the time lost in explaining why some irrelevant or simplistic defense won’t work is time lost to doing the job of actually defending the client.

While it may be that a certain amount of education, hand-holding, enlightenment is unavoidable for the defendant’s peace of mind, it’s not a part of the job.  The job is to represent the defendant.  To the extent that the defendant must make decisions that affect his life, the job is to honestly and accurately explain to the defendant the factors necessary for him to make critical decisions, doing whatever is needed so that the defendant fully understands and appreciates the considerations that should be encompassed in his decision-making. 

Where this often goes astray is that the defendant’s decisions have to do with strategy rather than tactics.  The former, the decision to plead guilty or go to trial, for example, belongs to the defendant.  How to try the case, on the other hand, is the exclusive province of the lawyer.

Schantz notes that there have been times when clients helped.

I have had a couple of clients that found case law that helped me prior to a motion hearing. I am not afraid to admit I don’t know everything or have read every case on any given topic. Thus, in a few instances, the extra help was appreciated.

The problem is that you can’t have it both ways.  If you invite the defendant to play jailhouse lawyer, then there is little to complain about when he does so.  The explanation, not being afraid to admit that he doesn’t know everything, is an abdication of responsibility. 

No lawyer has read every case on a given topic.  But every lawyer, having undertaken the representation of another human being, has a duty to learn everything on a given topic necessary to zealously represent his client.  We research what we don’t know. If the client has come up with something with which the lawyer is unfamiliar, the lawyer has failed to do his job.  If it’s there, it’s the lawyer’s job to find it and apply it.

Despite the few instances where client research made the difference, Schantz has had enough:

Because a non-lawyer thought he knew the law better than his lawyer. From here on out, I am going to cringe when a client informs me he’s been to the law library. Rarely does anything good come from it. Please let the lawyers be the lawyers.

When we need co-counsel, we’ll ask.

This reflects where the concept of lawyering can go decidedly wrong. Lawyers don’t ask their client’s permission to do their job. It is our ethical responsibility to advise our clients honestly and accurately on the law.  That’s why they gave us the fancy certificates with the big gold seal to hang on the wall.  Once we seek the defendant’s consent to fulfill our duty, we no longer satisfy our obligation to the client. 

This likely seems counterintuitive to many.  After all, the client is the main event, and so how could it be that we, the lawyers, shouldn’t cater to our client’s desires and demands?  Isn’t that the core of client service, to please them?  Hardly.

Our function is not to please the client, but to represent the client.  Representation often involves such less than pleasing events as informing them when they’re dead in the water, they have no defense, they aren’t getting out and the absence of a video doesn’t mean the prosecution can’t prove murder.  Defendants are placed in our care because they need, and deserve, our zealous representation.  We are not charged with being their pal, babysitter or teacher, but their lawyer.  Our job is to obtain the best possible outcome the law allows, consistent with their goals.  Our job often requires us to speak unpleasant truths and crush dreams.  The inability or unwillingness to do so when required is an abdication of responsibility.

The desire to have input into the legal tactics in a case crosses the spectrum of defendants.  Well educated professionals, facing federal charges of financial crimes, often believe their education, business success and experience enables them to contribute to the cause.  Street guys with too much time on their hands in jail enjoy the quiet and comfort of the law library, and want to help.  Almost every defendant knows somebody who knows somebody who has the solution to all his problems, because it worked for somebody else.

This is merely a matter of client management.  When it interferes with the performance of our obligation, we shut it down with the explanation that we can either spend the time alotted to the client being the lawyer or teaching the law, but not both.  The defendant has a role to play in the defense, but that role is not co-counsel.

If the client prefers to be his own lawyer, that may be his right.  But as long as you are the lawyer, then your duty to the client, whether he likes it or not, is to provide him with your honest and accurate advice, without regard to his consent. 

The defendant does not dictate the performance of our duties as a lawyer. That’s our job.