PONDERING THE ROLE OF LAWYERS AND “CLIENT CONTROL”

I recently came across an online debate about the term “client control.” This is a term used by lawyers to broadly describe the ability to convince clients to follow their lawyer’s advice. It can have, in my mind, a positive connotation, generally, the reason people have lawyers is because they do not know enough to navigate whatever legal quandary they find themselves in. They turn to a lawyer to guide and advise them. Thus, I do not think of “client control” as a per se negative.

But, the term can often have an uglier side, particularly in the realm of criminal defense, where judges and prosecutors might describe a lawyer’s inability to get a defendant to do the thing that would make the judge’s or prosecutor’s or even the defense attorney’s own life easier, but would have no specific benefit to the client. A client refusing to waive time for trial in an impacted courtroom can make people’s lives more difficult, but they can also reap a benefit when those people start trying to figure out how to avoid that difficulty.

It was, I think, in this uglier context, that the author of the original post that started the debate called for the abolition of the use of the term among defense attorneys and, more broadly, the abolition of the practice of trying to “control” our clients, but rather to use our expertise to affect our client’s wishes.

It was here that I, and several other defense attorneys, took issue. As a lawyer and counselor, my job is to guide, advocate for, and protect my client. Sometimes that means protecting my client from him or herself. I am not here simply to carry out whatever strategy my client may wish to employ. This is not to say my client’s desires are not important. Quite the opposite. My job is to listen and learn from my client what is important to them and what they hope to achieve in the outcome of a case. But once I have done that part of my job, it is then my job to develop the strategy most likely to achieve the client’s desired outcome. That strategy is not for the client to devise, that is why they have a lawyer.Sometimes that means exercising a degree of “client control.” I’ll give one example to bring it home. Not too long ago, I had a young client accused of some very serious crimes. His exposure if convicted at trial could very well have meant spending the rest of his life in prison. Through hard work and advocacy, and frankly some good luck, I obtained an offer of 12 years for the client. Now, 12 years is a long time to anyone, even more so to a young man still in his early twenties, but the evidence against him approached overwhelming. The odds that his situation improved by rejecting that offer were essentially zero. He told me, however, that he did not want the offer. He simply wanted to go to trial even if that meant a strong possibility of life in prison. Were I to agree that client control is never warranted, I suppose my path would be to simply accept that very bad decision and proceed to honor the client’s expressed wishes. Instead, I spent hours upon hours with the client and his family doing my job: counseling and advising what a catastrophically bad decision that would be to make. It would have been far easier to hide behind the idea of complete client autonomy, to argue that I should not patronize the young man and his decisions, but I believe I would have been abdicating my responsibility to my client by doing so. In that situation, advocacy on behalf of my client meant advocating fiercely to him why he needed to make a different decision. Ultimately, he did, and I think he did so in large part because he saw that I understood his motivations for wanting to make a different decision and that I cared for him and what would happen to him if he did. Perhaps that can be called client control. Perhaps it is not always a bad thing.