Allocating Authority Between Lawyers And Their Clients After McCoy v. Louisiana

IF 0.4 Q2 Social Sciences

New Criminal Law Review Pub Date : 2020-04-15 DOI:10.1525/NCLR.2020.23.2.170

N. Varsava, Judith Foo, Elizabeth Villarreal, David G Walchak

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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 some 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.

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McCoy诉路易斯安那州案后律师和客户之间的权力分配

2018年5月，美国最高法院就麦考伊诉路易斯安那州案发表意见，认为被告在审判中保持清白是宪法赋予的权利。在McCoy治下，律师可能不会在审判中承认客户的罪行，如果他们的客户坚持保持清白，即使这样做是一个合理的战术决定。在本文中，我们展示了该案件如何涉及一系列与律师-客户分歧有关的常见问题，我们认为《职业行为示范规则》在这一领域提供的指导不足。特别是，《示范规则》依靠律师回避作为律师与客户意见分歧的补救办法，忽视了律师可能有义务坚持与客户在代理方面存在严重分歧。《规则》还掩盖了与退出有关的相当大的行政负担。在描述了《示范规则》处理律师与客户分歧的方法中存在的一些问题之后，我们对《示范规则》提出了一套修订建议，以解决我们详细阐述的道德和实际问题。

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New Criminal Law Review LAW-

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期刊介绍： Focused on examinations of crime and punishment in domestic, transnational, and international contexts, New Criminal Law Review provides timely, innovative commentary and in-depth scholarly analyses on a wide range of criminal law topics. The journal encourages a variety of methodological and theoretical approaches and is a crucial resource for criminal law professionals in both academia and the criminal justice system. The journal publishes thematic forum sections and special issues, full-length peer-reviewed articles, book reviews, and occasional correspondence.