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Client Games: Defense Attorney Perspectives on Their Relations with Criminal Clients

Published online by Cambridge University Press:  20 November 2018

Roy B. Flemming
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Abstract

In this study, relations between criminal defense lawyers and their clients are explored from the attorneys' perspective using interviews with 155 defense counsel from nine felony trial courts. Attorneys claim public clients are more skeptical and less willing to accept their professional authority than private clients and that they need to take extra steps to gain their cooperation. The accountability of attorneys is investigated in relationship to the need to establish “client control.” This problem is resolved through a gamelike situation leading to the apparent paradox that attorneys share decision-making power with public clients contrary to their expectations.

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Articles
Information
American Bar Foundation Research Journal , Volume 11 , Issue 2 , Spring 1986 , pp. 253 - 277
Copyright
Copyright © American Bar Foundation, 1986 

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References

1 Blumberg, Abraham, The Practice of Law as a Confidence Game: Organizational Cooptation of a Profession, 1 Law & Soc'y Rev. 15 (1967).Google Scholar

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7 The numbers shown in parentheses after each interview excerpt are codes assigned to assure anonymity to each attorney.Google Scholar

8 Casper, Criminal Courts, supra note 3, at 83.Google Scholar

9 This distinction parallels the two meanings of “representation” identified by Skolnick: in one, an attorney accepts a client's view of how the case should be handled and provides counsel as to how to implement the strategy; in the other the attorney takes the responsibility for both strategy and tactics. Jerome Skolnick, Social Control in the Adversary System, 11 J. Conflict Resolution 52, 65 (1967).Google Scholar

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11 For a more detailed examination of the preliminary hearing decision in these nine courts, see Roy B. Flemming, Elements of the Defense Attorney's Craft: An Adaptive Expectations Model of the Preliminary Hearing Decision, 8 Law & Pol'y 33 (1986).Google Scholar

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19 In autobiographies of their work and careers, defense attorneys frequently bemoan their clients' lack of veracity. For example, Moldovsky states, “1 know that clients lie to me I just don't know which ones are the liars.” Joel Moldovsky & Rose DeWolf, The Best Defense 76 (New York: Macmillan Publishing Co., 1975). Wishman also recalls, “It didn't take me long to realize that nearly every client had lied to me.” Seymour Wishman, Confessions of a Criminal Lawyer 81 (New York: Times Books, 1981). Finally, Kunen describes the awkward situation a new client created for him when he asked, “Do you believe me?”“I didn't want to say 1 didn't believe him, because then it would seem I wasn't on his side. But I didn't want to say 1 did believe him, because then he'd think I was a fool.” James S. Kunen, How Can You Defend Those People? The Making of a Criminal Lawyer 187 (New York: Random House, 1983).Google Scholar

20 Dershowitz, Alan M., The Best Defense (New York: Vintage Books, 1983), recounts his shock at discovering his client was a stool pigeon for the prosecution: “After all, when I agreed to become his lawyer I had taken his case to defend a landsman, a fellow Boro Parker, a kid from the old neighborhood—not a stool pigeon. How could I ever trust Seigel again? For months he had tricked me and my colleagues into believing that he was a murder suspect, when all the while he was working for the other side, probably reporting every detail of our strategy right back to the prosecutor” (at 21).Google Scholar

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25 In an early study, Arthur Lewis Wood, Criminal Lawyer 101 (New Haven, Conn.: College and University Press, 1967), found that of 93 criminal lawyers, all of whom were private practitioners, 21 said they refused to accept clients who would not follow their advice.Google Scholar

26 This means that attorneys who are successful in this respect can play the kind of “confidence game” Blumberg describes. Blumberg, supra note 1.Google Scholar

27 See Nardulli et al., supra note 6, for an analysis of the guilty plea processes in the nine courts.Google Scholar

28 See id. regarding trial penalties in these courts. For other analyses, see Thomas M. Uhlman & N. Darlene Walker, He Takes Some of My Time: I Take Some of His: An Analysis of Sentencing Patterns in Jury Cases, 14 Law & Soc'y Rev. 323 (1980); David Brereton & Jonathan D. Casper, Does It Pay to Plead Guilty? Differential Sentencing and the Functioning of Criminal Courts, 16 Law & Soc'y Rev. 45 (1981–82).CrossRefGoogle Scholar

29 While sentences are important components of the client's decision, grievances and appeals are part of the attorney's choice and concerns. Between 1973 and 1983 criminal appeals more than doubled in Michigan and rose by 80% in Illinois. U. S. Department of Justice, Bureau of Justice Statistics, The Growth of Appeals: 1973–1983 Trends (Feb. 1985). However, all appeals do not center on the attorney's performance, and success rates for defendants are not high. Thomas Y. Davies, Affirmed: A Study of Criminal Appeals and Decision-Making Norms in a California Court of Appeals, 1982 A.B.F. Res. J. 543.Google Scholar

30 See text accompanying note 21.Google Scholar

31 Rosenthal, supra note 4, at 13.Google Scholar