16. However, the lawyers in the case actually imposed an insanity defense even though Kaczynski did not want to plead insanity. This case is not a clear one. How did the lawyers put forth an insanity defense here? A: The lawyers get to determine the strategy and tactics in a case. The decision to interpose a certain defense is, arguably, the lawyer’s choice. However, this violates the principle of autonomy. Yet, the Rules and Code give lawyer’s the option of paternalistic control here. The same control can be used for the death row client who doesn’t want to file any more appeals – In the long term, the client may thank the lawyer after his life is saved. Thus, in matters of strategy/tactics, the lawyers mostly have control. You have to inform your clients. However, the decision on defenses is usually yours (although there is argument to the contrary). 17. You represent a 14 year-old who’s accused of hitting his sister with a lead pipe. Your client confesses. You find out later that the mother lives with a boyfriend; the boyfriend has a rap sheet; there’s been a lot of turmoil in the house. You find out that he’s hit the kids before. Your client just wants to plead guilty. However, as you investigate more, you find out that the boyfriend’s rap sheet is extensive. Should the kid take the rap for what you think to be the boyfriend’s crime? 18. There are very few rules to guide you here. However, the Rules here treat juveniles as if they are disabled. Both the Rules and the Code tell you to operate as if the person is not disabled. However, the commentary states that lawyers occasionally need to make decisions in their client’s best interest. 19. Yet, the final answer here is that it is the client’s final decision as to how to plead. You still have to allow the client the autonomy to make his decision here. It’s very difficult to suggest here that you can operate outside of your client’s best interests. 20. The Model Rules use the term “reasonable belief” before you violate confidentiality. In New York, it’s actual knowledge. Some Model Rules jurisdictions say at least “clear and convincing evidence” is what the Model Rules
Elan Weinreb Page 16 of 110 mean (a lower standard than NY). IV. The No-Contact Rule – Or: “You Have Taken a Vow of Silence, My Son……” A. Rules 4.2 and DR 7-104(A) –
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- Fall '02
- The Land, Lawyer, Attorney-client privilege, Elan Weinreb