Wednesday, February 14, 2018

When Exercising One's Autonomy Clashes With One's Best Interests

by Sherry F. Colb

In my Verdict column for this week, I examine the case of McCoy v. Louisiana, currently pending before the Supreme Court. In McCoy, the Court faces the question whether there is a Sixth Amendment right to stop your lawyer from announcing your guilt to a jury, even if the announcement would serve your best interests (in reducing the odds of a death sentence). Among the issues I consider is how to cabin such a right so that convicts are not all in a position to reopen their convictions just because their attorneys deviated from the exact instructions of a client.

A useful analogy to consider here is the medical decision context. A patient who is uncomfortable with her doctor can decide not to patronize the particular doctor or, if he sticks with the doctor, not to follow the recommendations that she makes. For example, if the doctor prescribes a medication that the patient does not want, either because he hates medications in general or because the side effects of this one are unpleasant, the patient can choose not to fill the prescription or to refuse to take it after having filled it. Similarly, the patient can choose not to undergo triple bypass surgery, even though he has heart disease. He may have a bad reason for the decision, such as a belief that heart disease is a myth, or he may have a good reason, such as a commitment to eat in a manner that actually reverses the condition. Either way, he can forgo the medication and the surgery, come what may.
Doctors, of course, can and must avoid participating in malpractice. If a patient with healthy lungs asks his doctor to cut him open and remove as much of his lungs as possible, the doctor must refuse to do so. To cut into a healthy patient's lungs would be to engage in medical malpractice. Similarly, if a patient asks his doctor to prescribe opioids because the patient is curious about what opioid addiction is like, the doctor may not provide such a prescription.

There is accordingly freedom (and even an obligation) on the part of doctors to look out for their patients' best interests, even when the patients very much want something different from what their doctors advise. Attorneys likewise have some obligation to do right by their clients even when that means refusing to follow clients' instructions. A client may not, accordingly, force his attorney to object to evidence as hearsay when the evidence is not in fact hearsay, and the client cannot require an attorney to use swear words in closing arguments, even if the client desperately wants swear words used.

Though this does not explain everything, the distinction between acts and omissions is helpful in thinking about the autonomy/best-interests split. If the client wants to stop an attorney from doing something affirmative, whether that something be pleading guilty on the client's behalf or announcing that the client is guilty (as in McCoy), the client should be able to do so. Affirmative acts by the attorney should not be undertaken against the wishes of the client. In the same way, a doctor may not force medication into the patient or cut open the patient against the latter's will. Attorneys and doctors can recommend a course of action, but they cannot affirmatively pursue it against clients' and patients' wishes.

Clients and patients cannot demand that their attorneys and doctors behave in ways that are detrimental to the former's interests. Making someone do something bad is problematic in a way that preventing someone from doing something good is not. Just because you think that bleeding you will heal your strep throat does not entitle you to demand that your doctor bleed you. And your believing that mocking a murder victim during opening statements would be a smart move does not mean that your attorney must carry out that mockery.

Things may be more complicated than the act/omission distinction captures, of course. Once an attorney or doctor has already begun a trial or a course of treatment, it may take affirmative steps to do what ordinarily counts as an omission. For example, once an attorney is representing the client at trial, and it is too late to withdraw as counsel, she may have to do affirmative things--like put the client on the stand--that she regards as against the client's interests. Similarly, if a doctor has put a patient on a feeding tube, and the patient wants the feeding tube removed, the doctor may have to remove the tube to fulfill the patient's right to refuse unwanted medical treatment, even if the patient's medical interests require the tube. Of course, if a doctor anticipates this dilemma, she can refuse to take on the patient in the first place. The patient cannot simply order any doctor in the world to come to her side and remove her feeding tube (or respirator).

Both lawyers and doctors may be resistant to the idea that the client or patient gets to make bad decisions. The professions are both somewhat paternalistic in orientation; both give their practitioners the sense that they know what is best and that the client or patient should just follow the instructions of the wise professional. But it is useful to remember that professionals sometimes get things wrong. Doctors make mistakes all the time, including their failure to regularly and consistently wash their hands. And attorneys may erroneously assume that admitting a crime to the jury will make a death sentence less likely. Though the right to autonomy is important independent of the outcome, it is also useful for professionals to cultivate humility and to appreciate the possibility that what the patient or client really wants may actually be better than what the professional prescribes. One should always advise what one believes to be the best course of action. But when the person whose future is actually at stake disagrees, the obligation to yield may sometimes lead to the better outcome.


Shag from Brookline said...

I'm not comfortable with physician/attorney comparatives, based upon my many years as a practicing attorney and as a now 87 year old medical patient. But it seems clear to me that the client/patient be fully informed. A physician under current economics of the profession may not provide ample time for proper discussion with the patient (or a surrogate), whereas the lawyer does not have that excuse generally, even if the lawyer's time for such is not being well compensated. I haven't read the article linked to but I recall some reading on the case addressed.

Let's assume the client told the lawyer that he did the crime; and that the evidence was heavily stacked against the defendant. Let's assume that the client wanted the death penalty if found guilty and for that reason did not want his attorney to say he was guilty of the crime with a view to avoiding the death penalty. If I were the attorney, I would have difficulty in following the client's direction as I oppose the death penalty, keeping in mind knowledge of the client's guilt and of close to an impossibility of getting a not guilty verdict because of the strong evidence of guilt. Is the client in effect suicidal in my eyes as his attorney? Can an attorney in effect assist suicide by following the client's direction? Might that be justification for not following the client's direction? Of course I would not want to be put in that position. Perhaps dilemmas like this are reasons the death penalty should be eliminated. (By the way, I go along with physician assisted suicide as provided in Oregon.)

Joe said...

The oral argument in the case referenced raised some interesting points.

Justice Kagan, e.g., argued that the lawyer and the client had competing interests. The lawyer's ultimate goal was to avoid the death penalty. Sometimes, you admit the client committed the act there and focus on level of guilt, mitigation etc. The client, in her framing, wanted to avoid saying publicly that he killed family members. Avoiding the death penalty wasn't his ultimate goal. The government resisted this framing, arguing the client was just deluded on the best way to avoid the penalty.

A client to me can reasonably believe they warrant the death penalty. At the very least, they might prefer it than life in prison. See various "volunteers" (use quotes partially since there is complications here*) that decide no longer to resist execution. A person very well might reasonably think such and such crime warrants the death penalty, even if they did it. They also might prefer let's say years in prison instead of admitting a specific thing, including to protect third parties.

[tbh, I personally might prefer execution rather than being in a small hellhole for life. But, this doesn't mean the death penalty as a whole is okay -- the system has lots of problems. Also, I might prefer death over twenty years in prison, but we don't give violent offenders with long sentences some right to choose. And, most people on death row don't "volunteer." Anyway, if life is worth than death here, it ironically suggests it might be better for penal reasons!]

The client in various cases picks a lawyer with a certain goal in mind here. For instance, a civil rights advocate might want to be a martyr to a cause and not have the lawyer resist punishment at all costs. If a public defender is involved, this might professionally and ethically trouble him or her. The whole thing is tricky as is the current right to be one's own lawyer. This seems on principle reasonable, but understand why the dissenters was upset about the ideal on justice principles.


* Michael Dorf is an editor of a book on "constitutional stories." There is a "death penalty stories" volume of the series & one case involves the problem of volunteers. I have not read the book, but see, e.g., the dissent in Gilmore v. Utah, which included death penalty supporter Justice White.

Michael C. Dorf said...

I don't claim to be an expert in legal ethics, but when I taught at Columbia for a period of years the regular faculty got drafted to teach in a one-week mini-course in which, among other things, the students did a role-play of counseling a client who first tries to beat his murder rap by lying and, after conviction, wants to "volunteer" for the death penalty. My recollection was that the lawyer had considerable freedom to define his or her role in both contexts, but that ultimately client autonomy wins out. Our point of emphasis with the students was that the lawyer has many opportunities to act on her values by counseling the client, even when the client has the ultimate decision.

Joe said...

It was also noted during oral argument here there was some discretion.

If it was held the lawyer could not say the client was guilty, it could amount to a limited restraint. Something like "did not want his attorney to say he was guilty of the crime" also is a matter of line drawing.

Okay. Won't do that. Won't put up a defense though. Violate instructions?