2006-2.

Case DateApril 25, 2006
CourtAlaska
Alaska Ethics Opinion 2006. 2006-2. ALASKA BAR ASSOCIATIONETHICS OPINION 2006-2Responsibilities of a Lawyer to Honor Client's Instructions on Means of Representation in Criminal CasesQuestion Presented The Committee has been asked how a criminal defense lawyer should proceed in representing a client on an application for post conviction relief when the client insists that the lawyer not place his mental health into issue, when the defense lawyer believes that the best chance of success is in arguing that the client lacked mental competence to assist his trial counsel. Conclusion The Committee concludes that the lawyer need not, as an ethical matter, follow his client's instruction with regard to raising mental health issues. However, the lawyer must consult with the client on the issue. Further, the lawyer would not act unethically, if following discussion, the lawyer chose to follow the client's instruction and not pursue the avenue that the lawyer believes offers the client the best chance of success. Analysis Rule 1.2 of the Alaska Rules of Professional Conduct, Scope of Representation and Allocation of Authority Between Client and Lawyer, requires a lawyer to abide by a client's decisions concerning the objectives of representation and to consult with the client as to the means by which they are to be pursued1. In the situation presented by this question, the objectives of the client and lawyer are the same, to obtain post conviction relief. However, the client and the lawyer differ on the means to achieve this objective. The lawyer believes that the best argument to obtain post conviction relief is to allege that the client was mentally incompetent to assist his own counsel at trial. In order to make that argument, the lawyer must necessarily reveal the nature and extent of the client's mental health problems. The client is adamantly opposed to this tactic. Legal theories and the type of evidence to be offered in support of those legal theories are typically the technical and legal tactical issues left to the lawyer's determination. See Comment, Rule 1.2 ARPC. Moreover, the Alaska Court of Appeals has held that a lawyer for a criminal defendant does not render constitutionally ineffective assistance of counsel by failing to heed a client's wishes on tactical matters other than those specifically listed in ARCP 1.2(a). In Simeon...

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