Current through Register Vol. 50, No. 11, November 20, 2024
Section XV-2113 - Allocation of Authority between Counsel and ClientA. The allocation of authority between counsel and the client shall be managed in accordance with the Louisiana Rules of Professional Conduct, having particular regard to rules 1.2B. Counsel serves as the representative of the client and shall abide by the express wishes of the client regarding the objectives of the representation. However, counsel shall provide the client with his or her professional opinions with regard to the objectives of the representation. In counseling the client, counsel shall refer not only to the law but to other considerations such as moral, economic, social and political factors that may be relevant to the clients situation. Counsel may enlist the assistance of others to assist in ensuring that the client is able to make informed decisions. Counsel shall reasonably consult with the client about the means by which the clients objectives are to be accomplished and may take such action as is impliedly authorized by the representation.C. Counsel shall explain to the client those decisions that ultimately rest with the client and the advantages and disadvantages inherent in these choices. Counsel shall abide by the clients decision, made after meaningful consultation with counsel, as to a plea to be entered, whether to waive jury trial, whether the client will testify and whether to appeal. However, counsel shall not abide by such a decision where the client is incompetent, including where the client is, in the circumstances, incapable of making a rational choice not substantially affected by mental disease, disorder or defect. In such circumstances, counsel should take the steps described in these standards relating to the representation of persons with diminished capacity and the raising of the clients incompetence.D. Counsel should explain that final decisions concerning trial strategy, after full consultation with the child and after investigation of the applicable facts and law, are ultimately to be made by the attorney. The client should be made aware that the attorney is primarily responsible for deciding what motions to file, which witnesses to call, whether and how to conduct cross-examination, and what other evidence to present. Implicit in the exercise of the attorneys decision-making role in this regard is consideration of the childs input and full disclosure by the attorney to the client of the factors considered by the attorney in making the decision.E. In order to ensure that consultation with the client is meaningful, counsel should communicate in a trauma-informed and developmentally and age-appropriate manner and make accommodations where necessary due to a client's special circumstances, such as age and its attendant circumstances, incompetence, mental or physical disability/illness, language barriers, cultural differences, and circumstances of incarceration.F. While counsel is ordinarily responsible for determining the means by which the objectives of representation are to be accomplished, where the client revokes counsels express or implied authority to take a particular course of action, counsel may not act as the agent of the client without that authority. This will not prevent counsel from taking professionally responsible steps required by these standards but counsel must not purport to be speaking on behalf of or otherwise acting as the agent of the client.G. Counsel shall not take action he or she knows is inconsistent with the clients objectives of the representation. Counsel may not concede the clients guilt of the offense charged or a lesser included offense without first obtaining the consent of the client.H. Where counsel and the client disagree as to the means by which the objectives of the representation are to be achieved counsel should consult with the client and seek a mutually agreeable resolution of the dispute. Counsel should utilize other defense team members in his or her efforts to resolve a dispute.I. Where the client seeks to discharge counsel, every reasonable effort should be made to address the clients grievance with counsel and avoid discharge. Counsel should caution the client as to the possible negative consequences of discharging or attempting to discharge counsel and the likely result if any such attempt. Should the client persist with his desire to discharge counsel, the district defender or responsible agency should be immediately informed and counsel may request a substitution of counsel by the responsible agency. Counsel must move to withdraw when actually discharged by the client.J. Any withdrawal of counsel, including a substitution of counsel, should occur with the leave of the court. Should the court refuse counsel leave to withdraw, then counsel should continue to represent the defendant.K. A juvenile clients capacity to make adequately considered decisions in adult court when facing a possible sentence of life without parole may be diminished, whether because of age and its attendant circumstances, mental impairment or for some other reason. Where counsel reasonably believes that the child client has diminished capacity, he or she should:1. as far as reasonably possible, maintain a normal client-lawyer relationship with the client;2. if the client is at risk of substantial harm unless action is taken and the client cannot adequately act in his own interests, take reasonably necessary protective action. Such action may include: consulting with family members, using a reconsideration period to permit clarification or improvement of circumstances, using voluntary surrogate decision making tools such as durable powers of attorney or consulting with support groups, professional services, adult-protective agencies or other individuals or entities that have the ability to protect the client. In appropriate cases, counsel may seek the appointment of a fiduciary, including a guardian, curator or tutor, to protect the clients interests;3. in taking any protective action, be guided by such factors as the wishes and values of the client to the extent known, the clients best interests and the goals of intruding into the clients decision-making autonomy to the least extent feasible, maximizing client capacities and respecting the clients family and social connections.L. If counsel believes that the client will now or in the future seek to abandon some or all of the mitigation case or waive appellate or post-conviction review, counsel should consider consultation with additional counsel experienced and skilled in this area.M. The client has a right to view or be provided with copies of documents in counsels file. Acknowledging the dangers of case related materials being held in custodial facilities, counsel should strongly advise the client against maintaining possession of any case related material. Counsel should provide alternatives to satisfy the clients requests, such as more frequent visits with team members to review relevant documents in a confidential setting, or transferring files to successor counsel. Upon the termination of the representation, the client will ordinarily be entitled to counsels entire file upon request.La. Admin. Code tit. 22, § XV-2113
Promulgated by the Office of the Governor, Public Defender Board, LR 431919 (10/1/2017).AUTHORITY NOTE: Promulgated in accordance with R.S. 15:148.