If a capital defendant insists on pleading guilty and being sentenced to death, what are defense counsel's duties when counsel doubts the client's competence?

Plain-English summary

The inquiring lawyer represented a defendant charged with murder where the prosecutor might seek the death penalty. The defendant, in open court, insisted on pleading guilty and being sentenced to death, and the lawyer questioned the defendant's competence to waive a defense to the death penalty.

The committee opined that the lawyer's obligation was to abide by the client's decisions under RPC 1.2(a). If the client could not make adequately considered decisions, the lawyer was required to maintain a normal relationship with the client to the extent possible under RPC 1.13(a). Where the lawyer reasonably believed the client could not adequately act in his own interest, the lawyer could seek appointment of a guardian or take other protective action under RPC 1.13(b); the committee added that what protective action could be taken was a question of law beyond its authority.

The committee further opined that if the representation might be materially limited by the lawyer's personal opposition to the death penalty, the lawyer had to follow RPC 1.7(b), which required the lawyer to reasonably believe the representation would not be adversely affected and to obtain the client's consent after consultation and full disclosure; the committee noted the lawyer should also consider the client's ability to give that consent. Finally, a lawyer unable to continue under the Rules should request to withdraw under RPC 1.15(a), and a lawyer able to comply but faced with a client pursuing an objective the lawyer considered "repugnant or imprudent" could seek to withdraw under RPC 1.15(b)(3).

Currency note

This opinion was issued in 2000, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here. In the 2006 revisions Washington renumbered the rules cited here: the former RPC 1.13 (client under a disability) became RPC 1.14, tracking ABA Model Rule 1.14, and the former RPC 1.15 (declining or terminating representation) became RPC 1.16, tracking ABA Model Rule 1.16. Confirm the current rule and citation before relying on either.

Common questions

Q: Must defense counsel follow a capital client's decision to plead guilty and accept a death sentence?

A: The committee opined that the lawyer's obligation is to abide by the client's decisions under RPC 1.2(a), while also addressing competence and personal-conflict concerns under the other rules it cited.

Q: What can the lawyer do if the client cannot adequately act in his own interest?

A: Under RPC 1.13(b), the lawyer may seek appointment of a guardian or take other protective action; the committee said what protective action is available is a question of law beyond its authority, and that the lawyer must otherwise maintain a normal relationship under RPC 1.13(a).

Q: What if the lawyer personally opposes the death penalty?

A: If that opposition might materially limit the representation, the lawyer must satisfy RPC 1.7(b): a reasonable belief that the representation will not be adversely affected, plus the client's consent after consultation and full disclosure, with attention to the client's ability to give consent.

Q: Can the lawyer withdraw?

A: The committee said a lawyer unable to continue under the Rules should request to withdraw under RPC 1.15(a), and a lawyer faced with a client pursuing an objective the lawyer considers "repugnant or imprudent" may seek to withdraw under RPC 1.15(b)(3).

Background and rules framework

The opinion applied Washington RPC 1.2(a) (a client's decisions, ABA Model Rule 1.2), RPC 1.7(b) (personal-interest conflicts, ABA Model Rule 1.7), the former RPC 1.13 on clients under a disability (corresponding to ABA Model Rule 1.14, later renumbered RPC 1.14 in Washington), and the former RPC 1.15 on declining or terminating representation (corresponding to ABA Model Rule 1.16, later renumbered RPC 1.16 in Washington).

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.2 (scope; client decisions); Washington RPC 1.2(a)
• ABA Model Rule 1.7 (conflicts; personal interest); Washington RPC 1.7(b)
• ABA Model Rule 1.14 (client with diminished capacity); Washington RPC 1.13(a), 1.13(b)
• ABA Model Rule 1.16 (declining or terminating representation); Washington RPC 1.15(a), 1.15(b)(3)

See also

• WSBA Ethics Op. 1204: Plea Deal for a Disabled Client
• WA Ethics Op. 1011: Client Who Threatens Suicide
• WSBA Ethics Op. 1069: Client Acting Against Interests
• ABA Formal Op. 96-404: Client Under a Disability
• CA COPRAC Op. 2021-207: Diminished-Capacity Clients

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1098

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 1904
Year Issued: 2000
RPC(s): RPC 1.2(a);1.7(b); 1.13(a); 1.13(b); 1.15
Subject: Client competence; abiding by client decision; defendant in death penalty case asks to be sentenced to death

You inquired about your ethical obligations under the following circumstances: a lawyer represents a defendant charged with murder and the prosecutor may seek the death penalty. The defendant, in open court, insisted that he plead guilty and be sentenced to death. You question the defendant’s competence to waive defense to the death penalty.

The committee opines that a lawyer’s obligation is to abide by his client’s decisions under RPC 1.2(a). If the client is not able to make adequately considered decisions in connection with the representation, the lawyer is required to maintain a normal relationship with the client (to the extent such a relationship is possible) as required under RPC 1.13(a). When a lawyer reasonably believes that the client cannot adequately act in the client’s own interest, a lawyer may seek the appointment of a guardian or take other protective action with respect to a client. See RPC 1.13(b). What protective action can be taken under the circumstances is a question of law and beyond the scope of the committee’s authority.

Further, if the representation of the client may be materially limited by the lawyer’s personal opposition to the death penalty, the lawyer must follow RPC 1.7(b), which requires that the lawyer reasonably believes that the representation will not be adversely affected by his personal beliefs, and the client consents to the representation after consultation and a full disclosure of the material facts. In this case the lawyer should also consider the ability of the client to give consent.

If the lawyer is unable to continue representation under the guidelines of the Rules of Professional Conduct, he should request to withdraw as outlined in RPC 1.15(a). If the lawyer is able to comply with the Rules, but finds that the client is pursuing an objective the lawyer considers "repugnant or imprudent," the lawyer may seek to withdraw under RPC 1.15(b)(3).