Canadian Lawyer

16 S E P T E M B E R 2 0 1 8 w w w . c a n a d i a n l a w y e r m a g . c o m S hould a lawyer follow a client's instructions if the lawyer believes doing so would seriously endanger a client's best interests? Or can a lawyer ethically ignore dangerous instructions and do something different, something the lawyer thinks will lead to a better result, despite the client's objections? In 2010, the state of Louisiana, a death penalty state, charged Robert McCoy with three murders. The evidence against McCoy was overwhelming. Larry English was his lawyer. English's strategy was to concede that McCoy committed the murders but argue that McCoy's mental state prevented him from forming the intent required for a first-degree murder conviction. McCoy insisted he was innocent and said the murders had been committed by corrupt police in a drug deal gone wrong (this was L E G A L E T H I C S SHOULD LAWYERS ALWAYS FOLLOW ORDERS? By Philip Slayton Sometimes, a client's best interests should override their instructions not even remotely plausible). Against McCoy's violent and frequent objections, English, hop- ing to save McCoy's life, told the court McCoy had committed the murders but was crazy and lived in a fantasy world. "My client committed three murders," he said. "The evidence that will be put on that screen, that will come from that stand will say that he did it. Mr. McCoy has seen that evidence, but yet he — in all of his soul he does not believe he committed these crimes . . . But in layman terms, Mr. McCoy is crazy, ladies and gentlemen." The jurors were not impressed by this line of argument. They found McCoy guilty of first-degree murder and sentenced him to death. McCoy found another lawyer and sought a new trial. (Larry English went into a deep depression and gave up the practice of law.) The Louisiana Supreme Court affirmed the trial court's ruling that McCoy's lawyer had authority to concede his guilt despite McCoy's opposition. The case went to the United States Supreme Court. The Supreme Court held six to three (Ruth Bader Ginsburg giving judgment for the majority, justices Clarence Thomas, Samuel Alito Jr. and Neil Gorsuch dissenting) that the Sixth Amendment of the U.S. constitution guarantees a defendant the right to choose the objective of his defence and to insist that his counsel refrain from admitting guilt, even when counsel's experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. The Sixth Amendment, said Gins- burg, "speaks of the 'assistance' of counsel, and an assistant, however expert, is still an assistant." She continued: "When a client makes it plain that the objective of 'his defence' is to maintain inno- cence of the charged criminal acts and pursue an acquittal, his lawyer must abide by that objective and may not override it by conceding guilt." The Supreme Court ordered that McCoy be granted a new trial. In the summer months, I sit on my porch in Nova Scotia and look out at the sea. Sometimes, friends from elsewhere come to stay for a few days. Occasionally, a lawyer drops in (I still have a few lawyer friends, despite that book on the legal profession that I published a decade ago). I asked one of them — a very smart criminal defence lawyer from Yellowknife — what she thought of the McCoy decision. "No-brainer," she said. "Ginsberg is right. In Canada, we don't have the constitutional issue, and there's no capital punishment, but forget all that. The basic prin- ciple is the same. The lawyer is an assistant and is there to take instructions." A very senior and @philipslayton O P I N I O N DUSHAN MILIC

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