Even if you don’t practice criminal law, you should be interested in the U.S. Supreme Court’s eventual ruling in Rompilla v. Beard concerning ineffective assistance of counsel which was argued before the Court yesterday. (for details, see Justices Debate Lawyer Diligence in Capital Case, Tony Mauro, Washington Legal Times (1/19/05)).  As with Florida v. Nixon, a Supreme Court case that dealt with an ineffective assistance of counsel claim where a client failed to expressly authorize his attorney’s strategy (see our prior post ), the Romilla decision will likewise have implications for how we attorneys relate to our clients.

In Romilla, the petitioner claimed ineffective assistance of counsel in a capital case because his attorneys failed to review court files documenting petitioner’s history of alcoholism and poverty, his low IQ and troubled childhood.  The petitioner argued that had this information been presented at trial, he would have avoided a death sentence.

Now granted, the attorney’s conduct sounds pretty egregious until you read the briefs. Both parties’ briefs state that the petitioner’s attorney had asked him about his background and petitioner – apparently on several occasions denied his alcoholic history and troubled past.  But even there, the attorney did not rely on his client’s word alone – he also interviewed family relatives and sent the petitioner to experts in hopes of finding mitigating circumstances to spare him from death.

A court ruling finding the attorney rendered ineffective assistance won’t just impact criminal practice – but will affect how all of us deal with our clients.  Essentially, such a ruling would require the court to find that we cannot take our clients at their word.  Now sure, attorneys have an obligation to diligently investigate a client’s case – but that’s more to determine whether the case is feasible rather than to continuously question what our clients have told us.  And when clients begin to realize that it doesn’t matter what they say because attorneys can’t take them at their word, the trust so integral to the attorney client relationship will diminish.

Moreover, I want to empower my clients, not coddle them.  Clients deserve as much.  So, I take my time to explain the applicable law, why my clients must provide me with certain pieces of information and why that information must be accurate.  But if we send a signal to clients that their input doesn’t matter, and if they don’t provide it, then the attorney and not the client will pay the price, we encourage them to remain  passive bystanders rather than active participants in the judicial process.  And that makes us attorneys caretakers rather than advocates.

I’m not defending the Romilla attorney’s failure to check the court files.  I suppose he could have been more diligent.  But the reason that he wasn’t was because his own client simply wasn’t willing to provide his attorney with information that may have saved his life.  In those circumstances, I don’t think that the fault ought to rest entirely with his attorney either.