Counsel: Role of Counsel

Recall that the standard conception of the advocate's role combines a principle of partisanship with a principle of moral nonaccountability, according to which the advocate bears no moral responsibility for lawful actions taken on the client's behalf. This principle flows from the legal understanding that the lawyer is the client's agent or servant, that is, that the client is the primary decision-maker and the lawyer merely executes the client's decisions. In fact, however, everyone recognizes that the description of a client-principal directing a lawyer-agent represents little more than a legal fiction.

In the United States, even the formal rules of legal ethics allocate virtually all tactical decision-making to the lawyer, not the client. The client certainly chooses the ends of representation. The client also has a constitutional right to testify even if his defender objects. Finally, the client chooses how to plead, and thus whether to accept a negotiated plea. Apart from these limitations, however, the defender makes the remaining choices. Yet, although the lawyer must consult with the client about the means, lawyers need not abide by clients' tactical preferences. The lawyer decides which witnesses to call, what theory of the case to offer, and what strategy to pursue. In reality, then, the client probably possesses even less autonomy than the rules envisage: defenders can and do present options to their clients in a way so skewed that the client will choose what the defender wants him to choose. Defenders justify such overbearing behavior by insisting that clients are often foolish and that lawyers know better than clients what is in the client's best interests. Often, perhaps, the defenders are right.

However, it is important to realize that the more defenders become the real decision-makers in their clients' cases, the more accountable they are for the choices they make. In addition, overriding their clients' preference raises the important issue of how much paternalism can be justified in the lawyer-client relationship.