Yesterday’s 8-0 decision by the United States Supreme Court in Florida v. Nixon found that an attorney’s concession of guilt in a capital case does not give rise to a constitutional ineffective assistance of counsel claim even when the client has not expressly consented to the attorney’s strategy. The Court’s decision reversed the lower court which had found otherwise.
What’s interesting about the case from a client relations perspective is that it gives some insight into those decisions where client input is necessary. In this case, Justice Ginsburg suggested that a concession of guilt was a tactical decision that did not require client input. Yet the court went to great lengths to document the attorney’s efforts to explain his strategy to his client who simply would not agree or disagree one way or another. It also appears from the decision that the client did not dispute his inaction with respect to a decision on conceding his guilt.
For me, the decision brought home the importance of (1) erring on the side of seeking client input and (2) documenting a client’s decision. I wonder whether this case would have gotten as far as it did if the attorney had presented the client with a written document to memorialize the client’s decision. Without a document, it’s eventually just a client’s word against the attorney. Thus, any time there’s a matter requiring client authorization – be it a settlement proposal or a controversial trial strategy, it makes sense to present the options to the client in writing and seek written approval before moving ahead.