Unblurring The Ethical Lines

A while back, the question arose whether a poor strategic decision in the Crystal Cox case was the product of choice by her lawyer, Eugene Volokh, or a duty imposed on him because his client demanded it.  The issue arose after Eugene won an important victory in the 9th Circuit, despite his client, but the decision included a sentence that perturbed Cox.

So he moved to excise the sentence from the opinion.  That opened a door to not only revisit the sentence, but slam it shut far harder and more conclusively than in the first instance.  As the sentence was inconsequential to the outcome, it was, to be blunt. an incredibly foolish motion.

The point raised by Eugene, that citation to a New York Times article does not prove the point, has some validity.

A judicial assertion of misconduct by a named person, even a judicial assertion modified with the word “apparently,” could be based on the record in a case, or on authoritative findings by another court. But it ought not be based on a newspaper column, which was written without the benefit of cross-examination, sworn testimony, or the other safeguards of the judicial process. The claims in the columnist’s assertion are neither facts found by a factfinder nor facts subject to judicial notice under Fed. R. Evid. 201.

Of course, the motion presents a potential flaw that neither Cox nor Eugene may appreciate.  While Carr’s article may fall short of irrefutable proof, that doesn’t mean there aren’t a ton of other sources to substantiate the point with overwhelming evidence.

After all, Crystal Cox is not, her protestations to the contrary, a blogger like us.  If Eugene wants more and better support, he may get it. In spades. The rule of thumb is never ask a question when you don’t already know the answer. Eugene asks whether the evidence supports this sentence in the hope of the court saying, “meh, it wasn’t necessary anyway. Whatever.”  That may not be quite the way it goes when the prevailing party takes a swipe at the winning opinion.

The strategic pointlessness of the motion aside, it raised the question of why Eugene felt compelled to take this course of action.

In the comments, the argument was posed that Eugene had an ethical duty to his client to do so:

It’s not unreasonable for Volokh to believe that his ethical obligation (formally or informally) to advocate for his client did not end with the publication of the opinion. After all, while a lawyer might take a case for the issue, his responsibility is to his client.

Others took a sadly simplistic view of the relative duties of lawyer and client.

[U]nless there’s some sort of limited-representation agreement (and maybe not even then), a lawyer doesn’t get to tell the client “well I’ll represent you to the extent it serves my own interests.” If I represent Cox in a case, and she thinks a court opinion says something unnecessary and injurious to her, then I have a duty to represent her on that.

The gist of the argument is that if a client says “jump,” the lawyer’s duty is to ask “how high?”  We are mouthpieces, with clients dictating how we exercise our professional responsibility. We do as we’re told. We do as they command.

While the underlying philosophical concern for client’s desires is admirable in a way, it also badly misconstrues both our professional responsibility and our ethical duty.  We are retained as counsel, not as ventriloquist dummy.  Our duty is to use our professional judgment on behalf of clients, not to substitute their judgment for ours.

This point is driven home in People v. Lee, before the Appellate Division, First Department.  In that case, the defendant personally sought to have the Court read his co-defendant’s guilty plea allocution to the jury, in which she inculpated the defendant.  The defendant was insistent. His lawyer, in contrast, objected to his own client’s wishes.

Defendant’s constitutional right of confrontation was violated when the court read the transcript of the codefendant’s guilty plea allocution to the jury. The codefendant’s statements by which she inculpated defendant, were testimonial hearsay by a nontestifying declarant, whom defendant did not have a prior opportunity to cross-examine (see Crawford v Washington, 541 US 36 [2004]).

The People’s argument that the Confrontation Clause was inapplicable because defendant himself introduced the evidence is unavailing. Although defendant personally requested the introduction of the evidence, he was not appearing pro se. Defendant was represented by counsel throughout the case, and there was no form of hybrid representation. The decision to introduce evidence was not a fundamental decision reserved to defendant, but a strategic or tactical decision for his attorney (see People v Jones, 41 AD3d 242, 243 [1st Dept 2007], lv denied 9 NY3d 923 [2007]). Thus, defendant was deprived of his right to counsel when the court admitted the evidence solely based on his own request, over his attorney’s vigorous and consistent opposition (see People v Colville, 20 NY3d 20, 32 [2012]).

This is  quite a remarkable, and quite a correct, holding by the appellate panel.  After all, the fault was the defendant’s, not the prosecution’s, which would have made it all too easy to lay blame for whatever complaint he has on the defendant alone.  After all, he asked for it, and he got it. Boo hoo.

But defense counsel, Hershel Katz, understood both his constitutional role in the case, and the parameters of his ethical obligations to his client.  Rather than merely acquiesce to what Lee wanted, he recognized that his duty was not to be Lee’s conduit, but to be Lee’s lawyer.  The court recognized this critical distinction, and its constitutional implications.

The decision to introduce evidence was not a fundamental decision reserved to defendant, but a strategic or tactical decision for his attorney.

Strategic and/or tactical decisions are the province of the lawyer, where he must exercise his professional discretion regardless of what the client desires.  As much as some well-intended lawyers want to put their clients first, an admirable intent, this doesn’t alter their ethical duty to be the defendant’s lawyer, not pal, conduit, mouthpiece.

Sometimes, our ethical duty compels us to refuse to do what the client would like, because it’s a bad strategic or tactical idea.  And when that is the case, our duty is to tell the client “no,” and serve his best interests, whether he realizes it or not.

H/T Kathleen Casey

11 thoughts on “Unblurring The Ethical Lines

  1. Richard G. Kopf


    Eugene should have remembered that “pigs get fed and hogs get slaughtered.” Easy for me say.

    More importantly, you have hit upon a concern that has been running through what’s left of my brain for a long time. Too many young criminal defense lawyers fail to exercise independent judgment when representing their clients.

    I speculate that these kids have a sort of “hero child” mentality. It is critically important that criminal defense lawyers maintain firm psychological boundaries between the client and themselves. Failing to do so frequently results in all manner of trouble for the client and the lawyer. “Do-gooders” make terrible criminal defense lawyers–at least that’s they way I see it.

    All the best.


    1. SHG Post author

      You raise a secondary concern as well: in the exercise of independent professional judgment, is the lawyer thinking like a lawyer or trying to please the client’s desires, no matter how inappropriate or strategically problematic?

    2. pete


      I’m a kid public defender in my first month on the job and I’ve definitely noticed that urge will need to be beaten out of me. When we see people in pain the natural reaction is to help through kindness but I’m realizing that belly rubs are only going to make me feel better. Thanks for driving home the point.

  2. RKTlaw

    The lines in NC are very blurred due to the horrible decision of State v. Ali, 329 N.C. 304 (2008) which holds that a lawyer must defer to the Defendant on even tactical issues if there is an “absolute impasse” between defense counsel and the Defendant on a matter.

  3. nidefatt

    While I agree with the point about tactics, I think the Volokh example is wrong. Strategy and tactics are means to reach a particular goal. Removing an offending sentence from a winning opinion is not tactics. How you get rid of it is. The goal of removal was properly up to the client.

    1. SHG Post author

      What I find most interesting about your comment is how differently experienced lawyers see the line from inexperienced lawyers. By the way, you may want to learn the definitions of strategy and tactics.

      Your understanding of reaching a particular goal is rhetorical nonsense. Everything a client says he wants is a “particular goal” (“he lied, tell him he’s a liar, A LIAR!!!”), which would negate the lawyer’s ethical duty altogether. The goal is prevailing in the case, not nitpicking each word, phrase, sentence or paragraph along the way.

  4. Matthew I

    Legal issues aside, there’s a gem of a comedy hiding in this case somewhere.

    -Defendant: Your Honor, I’d like you to read this to the jury.
    -Lawyer 1: Your Honor, I agree fully with the defendant. Please read that to the jury.
    -Judge: Wait, aren’t you the prosecutor?
    [Lawyer 2 bursts into the courtroom]
    -Lawyer 2: Your Honor, I’m sorry I’m late! No matter what, you MUST NOT do what the defendant wants you to!
    -Judge: But you’re his attorney!
    -Lawyer 2: I know!

  5. John Barleycorn


    Let me mix you another cocktail esteemed one before the illusion of lift becomes ethical.

    [if anyone missed it, this is a particularly interesting follow up post for the early a.m., ten minute aggregating, rambler otherwise known as the esteemed one.]

    Furtively, certainly not. A cow bell perhaps, but I don’t think the esteemed one is a hockey fan.

    The glide of the guild is worth paying very close attention to.

    Absolute impasses are fantasy.

    Lift is physics.

    What’s going on here then?

    You shouldn’t and can not know.

    But when you know you know.

    Very important.

  6. Bob


    What is/was the status of the case on remand? Tried searching the intertubes and all I got was a lot of, well, nothing very helpful.

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