Samuel C. Stretton.

Lawyers have an ethical duty, at times, to protect the client from themselves.

I am representing an individual charged with murder in the first degree and it appears the death penalty will be sought. The evidence is overwhelming. I want to focus on the penalty phase. The client, who I think is mentally unbalanced, wants me to fight the guilt/innocence phase. What can I ethically do?

The question is very interesting, particularly in view of the recent U.S. Supreme Court case in McCoy v. Louisiana, U.S.-538 Supreme Court 1500 (2018). In McCoy, the Supreme Court reversed the conviction and indicated the defendant had a Sixth Amendment right to insist that his counsel refrain from admitting that the defendant committed the three murders during the guilt/innocence phase of the capital trial. The court made that ruling even though trial counsel believed that by admitting guilt, it gave the defendant his best chance to avoid the death penalty.

The McCoy case is interesting because it discusses, to some extent, the difference between strategy and tactics. In the Rules of Professional Conduct, Rule 1.2 makes a distinction in terms of strategy decisions versus tactical decisions. In a major strategy decision, the client has to be consulted. On tactics, it is normally the lawyer's choice.

Although in theory, the decision of the U.S. Supreme Court upholds the right of a client to make guilty plea decisions, which is an important concept, it should be noted that the court seemed to disregard its prior decision in Indiana v. Edwards, 554 U.S. 164, 128 Supreme Court, 2379 (2008). The Edwards decision made this distinction between a client being competent enough to stand trial, but not being competent enough to represent themselves.

It's somewhat shocking that this Edwards case was not discussed at all in the McCoy case, because it appears that Edwards would be a major consideration as to the ability of the client to make these kinds of decisions as opposed to being competent for trial. This is particularly true in a capital case, which requires more from clients than a noncapital case.

Many times, in capital cases the evidence is overwhelming on the guilt/innocence phase. Therefore, the goal is to attempt to save the person's life and everything on the case has to focus around that. Accepting responsibility, at times, is a good step toward mitigation and to defeat the death penalty.

Any lawyer who has done capital defense knows at times clients state they either want to be found not guilty or they want death. Many clients are very stubborn during the trial on that point. The problem is when any experienced lawyer who has handled capital cases knows that almost every client changes their mind later. If the lawyer disregards the client's instructions and presents a mitigation defense and, as a result, there is not death penalty, the client much later will thank the lawyer. It might not happen at the trial time. The clients honestly don't know what they want sometimes, particularly in these kinds of serious matters.

In deciding what to do, Rules of Professional Conduct, Rule 1.14, states a client with a disability has to be considered. That rule allows under certain circumstances a lawyer to seek the appointment of a guardian ad litem if the lawyer believes the client is not making rational decisions. One of the problems is when to file such a petition. In capital cases, one of the strategies, of course, is not to have psychological reports given to the district attorney until after the guilt/innocence phase has been resolved. At least one state, Florida, has appointed guardian ad litem in capital cases if there is an issue of mental disability.

So, what does one do since the U.S. Supreme Court has said the client has a right to prevent the lawyer from arguing that he is guilty when trying to save the client's life? Obviously, the lawyers have to work around the McCoy decision. But, ethically, the issue becomes competency and the aforementioned Indiana v. Edwards case is a good starting point to try to make distinctions.

Also, as noted, Rule 1.14 may be necessary if the client is not truly competent enough at the high level required for representation in a capital case to make these decisions. Perhaps the use of a guardian ad litem is going to have to be seriously considered in Pennsylvania in some capital cases.

Further, in the mitigation phase, despite what a client wants, there is a duty under the capital statute to make a full and complete record. In terms of whether life or death is given there is more than just the client's interest at stake. There is also a very strong societal interest whether someone gets death or not. Death can only be allowed if the mandate under the capital statutes are complied with and there is a complete and adequate record, which includes presenting all possible mitigation. Therefore, in the capital phase when one's is trying the life or death issue, the lawyer is required to present any and all mitigation and the client's wishes that none be presented can be overridden by the requirements of the capital statute. Further, as noted, there is still the option of seeking the guardian ad litem or treating the client with a mental disability.

The world of criminal law, particularly the world of homicides, is never easy. There are always difficult issues presented and the stress of representing a client when death is an issue is phenomenal.

Lawyers have an ethical duty, at times, to protect the client from themselves. McCoy is a good decision in some regards, but it didn't consider the issues of mental competency. These are areas that lawyers can review and work on in terms of trying to protect their client's interest, when the client is not protecting themselves.

In evaluating how to determine what's right and wrong, a lawyer should consult the Rules of Ethics and any ethics opinions.

I might have to give physical evidence over. The client has given me a tape that clearly violates Pennsylvania wiretap statutes, since only one person consented. Can I use this tape in defense or can I have it destroyed?

There is no clear answer to this question. First, the Pennsylvania wiretap statute is very strict and it's a felony of the third degree not only to record someone's conversation, but also to use the tape. In fact, anyone who listens to this illegal tape is guilty of a felony of the third degree. But, if the client brings in such a tape and tells the lawyer, whether it's in a criminal case or a domestic case, that this refutes the other party's position, the lawyer can't even listen to the tape. This tape is evidence of an actual criminal activity of a very serious nature, a felony.

So, what is a lawyer to do? Traditionally, if someone has given the lawyer evidence of a crime, then that lawyer in a criminal case has an obligation to turn it over to the district attorney. The lawyer can't modify or change the evidence or clean it up. In return, the district attorney cannot utilize or mention the source of where they obtained the evidence. That's often seen in criminal cases, for instance, where a weapon is discovered by the defense but somehow missed by the prosecution at a crime scene. In such a case, the lawyer has to give the gun to the DA before or during the trial. The DA cannot say that the weapon was given by the defense lawyer or by the defendant.

But, with the tape it creates a double issue. A lawyer can't use the tape whether it's in a civil or criminal case because it's illegal and criminal. The lawyer can't even listen to it  But, since this is evidence of a separate crime, what's a lawyer to do? Should the lawyer tell the client it is a crime and have the client destroy it? Obviously, a lawyer can't have a client destroy evidence since that would be conduct contrary to the administration of justice and could violate Rule 8.4(d) of the Rules of Professional Conduct. Also, a lawyer can't ask someone else to destroy evidence. Should the lawyer just take the tape and lock it away in a desk drawer?

There is no easy answer to this situation. This is a little bit different than just a gun at the scene or drugs at the scene or things of that nature. This is evidence of a totally new and separate crime. It's clearly that can't be used in the underlying case. But since it's evidence of a new crime, does the lawyer have an obligation to turn it over anyway? If the lawyer turns it over it would be totally clear under most circumstances who did what. Once they DA listens to the illegal tape, they will find out who did the tape and who they were talking to.

It's this writer's opinion (and remember anyone else can review this and perhaps reach a different conclusion), that the lawyer cannot give the tape back to the client. The lawyer should not turn the tape over, because the client has a right not to incriminate themselves and the lawyer is their agent. The lawyer can't destroy the tape either. Therefore, the lawyer is going to have a file cabinet where things of this nature are placed in limbo and held there perhaps for an eternity. But, the Rules of Ethics would be turned on their head if a lawyer has the obligation to turn the client in for a past crime. A lawyer under the confidentiality rule, Rule 1.6, cannot reveal past crimes.

In evaluating how to determine what's right and wrong, obviously any lawyer should consult the Rules of Ethics and any ethics opinions. The key, though, is acting in a rational and informed manner. Sometimes there are gray areas and reasonable things could differ. But if the lawyer analyzes the rules, perhaps gets advice, does the research and reaches opinions, it is highly unlikely the lawyer will ever be fully criticized or disciplined if the lawyer did their due diligence and reached a rational decision. They key is recognizing the issues and dealing with the issue. That is the role of a professional.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.