Tuesday, August 28, 2018
The Supreme Court’s May 2018 decision in McCoy v. Louisiana has been hailed as a decisive statement of the priority of the value of a criminal defendant’s autonomy over the fairness and reliability interests that also inform both the Sixth Amendment and the ethical obligations of defense counsel. It also appears to be a victory for the vision of client-centered representation and the humanistic value of the inherent dignity of the accused. However the decision is susceptible to being read too broadly in ways that harm certain categories of defendants. This paper offers a couple of cautionary notes, in response to McCoy, regarding the ethical obligations of defense counsel. The most important caution is that, as a matter of constitutional law and professional ethics, the preference for autonomy and the standard allocation of decision making authority presupposes a fully competent client, not a client who merely passes the extremely low constitutional bar of competency to stand trial. A client capable of participating in a fully autonomous way in the representation is far more than minimally competent.
Where the client has diminished capacity to make adequately considered decisions in connection with a representation, the usual division of decision making authority within the lawyer-client relationship breaks down. The Supreme Court’s 2008 decision in Indiana v. Edwards muddles the issue considerably by recognizing a gray area between competency to stand trial and entitlement to self-representation under Faretta v. California. The self-representation right in Faretta is based on the same autonomy interests that animate McCoy. Autonomy is a capacity, and the Edwards decision questions whether a client lacking this capacity can participate in the representation in the usual way. Edwards therefore casts considerable doubt on whether autonomy should have the same priority over fairness and reliability interests in a representation involving a borderline-competent defendant. Observing that a lawyer’s decision has the effect of limiting the client’s autonomy is the beginning of the recognition of a complicated issue, not the end of the analysis. In many cases the lawyer should respect a client’s fully-informed decision regarding the representation. There will be other cases, including the representation of questionably competent clients, in which the client’s autonomy interest must be subordinated to other legal values. This ranking should not be conducted on an ad hoc basis but in a principled way. This paper therefore proposes a sliding-scale approach to autonomy and other professional values, in which the most important consideration is a balance between the importance of the decision and the client’s capacity to participate in a meaningful way in the representation. A clearly competent, well-informed client still has the right to make what a lawyer believes to be unreasonable decisions regarding the representation. However, the threshold for concluding that a client is competent and a decision is fully informed should be set sufficiently high to ensure the protection of “gray area” client and also to provide appropriate incentives to trial counsel to conduct a thorough investigation and mount an effective defense.