WHEN THE CLIENT GOES ROGUE: Suggested Practices When the Client Insists on an Ill- d!

ised Strateg" #uring Trial

Presenter: $a%es R& Tuc'er( $r& Presented: )*+,-+*),.

s al/a"s( it is o0 1ara%ount i%1ortance that counsel al/a"s e2ert 3est e00orts to 1ro%ote e00ecti!e co%%unications /ith clients( 3ut 'no/ing /hat to do /hen these e00orts 0ail can sa!e "our license&

SCEN RIO: You are in the middle of trial. You have been preparing the case for months. You know the law. You know the facts. You know within a standard of error what the proof will be. You have your trial strategy planned. You have discussed this strategy and plan with your client. Everything is going as expected. Suddenly, your client begins demanding that you follow his absurd and possibly damning orders. WHAT DO YOU DO?

Rule 1. states, in part, that !a lawyer shall abide by a client"s decisions concerning the ob#ectives of representation and ... shall consult with the client as to the means by which they are to be pursued.! $he %omments to Rule 1. state the common belief that clients often defer to the expertise of their lawyers, particularly on !technical, legal and tactical matters.! $he %omments further recogni&e the common wisdom that attorneys defer to their clients" instructions with respect to the cost of litigation or the effect of litigation on a third party.

'owever, nothing in the Rules or the %omments directly address how to handle disagreements on these topics, !(b)ecause of the varied nature of the matters about which a lawyer and client might disagree and because the actions in *uestion may implicate the interest of a tribunal or other persons.! +See Rule 1. , %omments 1 and .,

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Rule 1. states, in part, that !a lawyer shall abide by a client"s decisions concerning the ob#ectives of representation and ... shall consult with the client as to the means by which they are to be pursued.! %omment (1) to Rule 1. +a, explains further: ;+1,s the Rule implies, there are circumstances, in litigation or otherwise, when lawyers are re*uired to act on their own with regard to legal tactics or technical matters and they may and should do so, albeit within the framework of the ob#ectives of the representation.<

9urther, Rule 1. +a, states that the decision as to whether to settle a case rests with the client. Rule 1. +a, also directs that only the defendant can waive a #ury trial or decide whether to testify. Similarly, the ..S. Supreme %ourt, has held that the decision to appeal is up to the client. =ones v. 6arnes, >-? ..S. @>A, @>- +1BC?,.

7hen 1. is read together with Rule 1.> +re*uiring a lawyer to communicate to the client any significant aspect of the case and to respond to any reasonable re*uests or *uestions the client may have,, then the lawyer is obligated to bring to the clientDs attention any offer for settlement, including those that the attorney may believe will be re#ected or are not even worth considering. Similarly, in a Eissouri v. 9rye, 1? S.%t. 1?BB + F1 ,, the ..S. Supreme %ourt held that any plea offer must be communicated to the defendant and that the failure to do so is ;ineffective assistance of counsel.<

1ppellate decisions would seem to indicate that the attorney retains the authority to make tactical and strategic decisions throughout the case. See /ix v. 7hiteside, >@A ..S. 1A@ +1BC-,G see also 6rewster v. State, /o. E FFCHF1>-CH%%1HR?H4% +$enn. %rim. 1pp. FFB, +;0eference is made to trial strategy or tactical choices if they are informed ones based upon ade*uate preparation.<,G Eateen v. State, /o. E F1FHFF> ?H%%1H

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R?H4% +$enn. %rim. 1pp. F11, +;and may not secondHguess the tactical and strategic choices made by trial counsel unless those choices were uninformed because of inade*uate preparation.<,G Rochester v. State, /o. E FFAHF1>-CH%%1HR?H4% +$enn. %rim. 1pp. FF-, +;%ounsel"s performance will not be #udged in hindsight, and this court will not second guess counsel"s decisions regarding trial strategies and tactics.<,. Related, the courts have also made clear that an attorney may refuse to call a witness even though his or her client desires that the witness testify. 6ogus v. State, @1B S7 d ?F@ +$enn. %rim. 1pp. 1BC-,.

9urther, during the appeal, an attorney en#oys great autonomy in the selection of points to raise. $he ..S. Supreme %ourt has held that defense counsel assigned to prosecute an appeal from a criminal conviction does not have a constitutional duty to raise every nonH frivolous issue re*uested by the defendant. =ones v. 6arnes, >-? ..S. @>A, @>- +1BC?, +Recogni&ing that !(s)electing the most promising issues for review has assumed a greater importance in an era when the time for oral argument is strictly limited in most courts and when page limits on briefs are widely imposed,! and opining that lawyers are trained to make those decisions, and reasoning that to allow a defendant to make that decision would undermine the ability of counsel to present the appropriate arguments in accordance with counselDs professional evaluation.,.

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Rule 1.1- provides for both mandatory and permissive withdrawal.

Withdra/al is %andator" when +1, the representation will result in a violation of the Rules of 4rofessional %onduct or other lawG + , the lawyer"s physical or mental condition materially impairs the lawyer"s ability to represent the clientG or +?, the lawyer is discharged.

Per%issi!e /ithdra/al is allowed for a number of reasons, including when the client +1, withdrawal can be accomplished without material adverse effect on the interests of the clientG + , the client persists in a course of action involving the lawyer"s services that the lawyer reasonably believes is criminal or fraudulentG +?, the client has used the lawyer"s services to perpetrate a crime or fraudG +>, the client insists upon taking action that the lawyer considers repugnant or imprudentG +A, the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer"s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilledG +-, the representation will result in an unanticipated and substantial financial burden on the lawyer or has been rendered unreasonably difficult by the clientG +@, other good cause for withdrawal existsG or +C, the client gives informed consent confirmed in writing to the withdrawal of the lawyer. 2n short,!permissive withdraw! is possible when a client insists that the attorney engage or assist in illegal or unethical actions or plans of action that are fraught with risk to the client.

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$he following suggested procedure is based on Iagorski v. State BC? S.7. d -A> +$enn. 1BBC,. Iagorski dealt with a situation where the client refused to allow the attorney to present mitigating evidence. $he attorney ac*uiesced but failed to inform the court that such strategy was against his legal advice. $he $ennessee Supreme %ourt found no ineffective assistance of counsel, but set out a prospective procedure for dealing with similar situations in the future to ensure such decisions by the client were made both knowingly and competently.

1.

2nsure that the client has intelligently and voluntarily made a decision, advise client of the potential negative ramifications of their re*uests, if possible get the client"s written acknowledgmentG

1void disclosure of potentially privileged or confidential information and client communications at all costs going forwardG

?.

Seek permissive withdraw, give one of the reasons for permissive withdraw, if the court re*uests further explanation ob#ect on the grounds of attorneyHclient confidentialityG

>.

2f not allowed to withdraw, based on the confidential nature of the dispute ask to be heard ex parte in cameraG if refused, inform the court on the record but outside the presence of the #ury the nature of the dispute, and that your client"s directions are against your adviceG

A.

Suggest that the court take the following steps to protect the defendant"s interests and to preserve a complete record: 1. 2nform the client of his right to counsel and make a determination on the record whether the client understands this right and the importance of having counsel"s advice during all stages of a causeG . 2n*uire of both the client and counsel whether they have discussed the important aspects of client"s proposed strategy, the risks, and any direct or collateral conse*uences of client"s proposed strategyG and

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?. 1fter being assured the client understands the importance of his decision, in*uire of the defendant whether he or she desires to pursue their strategy against counsel"s advice.

NOTA BENE: $he foregoing is simply the author"s humble opinion and is no substitute for your own research into the sub#ect discussed. $he information is provided for general educational purposes and does not constitute legal advice. 1s always, whenever possible please seek the advice of expert counsel. $he Ethics 'otline is available for help +-1A, ?-1H@AFF ex. 1 . 1dditionally, there is the Ethics 8pinion Service and an informal ethics in*uiry can be made online at: http:JJwww.tbpr.orgJ1ttorneysJ2nformalEthics2n*.aspxG and formal ethics opinions can be searched at: http:JJwww.tbpr.orgJ1ttorneysJEthics8pinionsJdefault.aspx.

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SELECTE# TENNESSEE RULES O4 PRO4ESSION L CON#UCT 5 CO66ENTS RULE ,&*: SCOPE O4 REPRESENT TION N# LLOC TION O4 UTHORIT7 8ETWEEN CLIENT N# L W7ER +a, Sub#ect to paragraphs +c, and +d,, a lawyer shall abide by a client"s decisions concerning the ob#ectives of representation and, as re*uired by R4% 1.>, shall consult with the client about the means by which the client"s ob#ectives are to be accomplished. 1 lawyer may take such action on behalf of the client as is impliedly authori&ed to carry out the representation. 1 lawyer shall abide by a client"s decision whether to settle a matter. 2n a criminal case, the lawyer shall abide by the client"s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive #ury trial, and whether the client will testify. (K) +d, 1 lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows or reasonably should know is criminal or fraudulent, but a lawyer may discuss the legal conse*uences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law. Co%%ent llocation o0 uthorit" 8et/een Client and La/"er (1) 4aragraph +a, confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer"s professional obligations. $he decisions specified in paragraph +a,, such as whether to settle a civil matter, also must be made by the client. See R4% 1.>+a,+1, for the lawyer"s duty to communicate with the client about such decisions. 7ith respect to the means by which the client"s ob#ectives are to be pursued, the lawyer shall consult with the client as re*uired by R4% 1.>+a, + , and may take such action as is impliedly authori&ed to carry out the representation. ( ) 8n occasion, however, a lawyer and a client may disagree about the means to be used to accomplish the client"s ob#ectives. %lients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their ob#ectives, particularly with respect to technical, legal, and tactical matters. %onversely, lawyers usually defer to the client regarding such *uestions as the expense to be incurred and concern for third persons who might be adversely affected. 6ecause of the varied nature of the matters about which a lawyer and client might disagree and because the actions in *uestion may implicate the interests of a tribunal or other persons, this Rule does not prescribe how such disagreements are to be resolved. 8ther law, however, may be applicable and should be consulted by the lawyer. $he lawyer should also consult with the client and seek a mutually acceptable resolution of the disagreement. 2f such efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw from the representation, sub#ect to the approval of the tribunal, when re*uired. See R4% 1.1-+b,+>,. %onversely, the client may resolve the disagreement by discharging the lawyer. See R4% 1.1-+a,+?,. (?) 1t the outset of a representation, the client may authori&e the lawyer to take specific action on the client"s behalf without further consultation. 1bsent a material change in circumstances and sub#ect to R4% 1.>, a lawyer may rely on such an advance authori&ation. $he client may, however, revoke such authority at any time. (>) 2n a case in which the client appears to have diminished capacity, the lawyer"s duty to abide by the client"s decisions is to be guided by reference to R4% 1.1>. Cri%inal( 4raudulent( and Prohi3ited Transactions (B) 4aragraph +d, prohibits a lawyer from counseling or assisting a client to engage in conduct that the lawyer knows or reasonably should know is criminal or fraudulent. $his prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual conse*uences that appear likely to result from a client"s conduct. /or does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself
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make a lawyer a party to the course of action. $here is a critical distinction between presenting an analysis of legal aspects of *uestionable conduct and recommending the means by which a crime or fraud might be committed with impunity. (1F) 7hen the client"s course of action has already begun and is continuing, the lawyer"s responsibility is especially delicate. 2n some situations the lawyer may be permitted or re*uired by Rule 1.- to reveal the client"s wrongdoing. See R4% 1.-+b,+1, and +c,+1,. 2n any case, however, the lawyer is re*uired to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. 1 lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. $he lawyer must, therefore, withdraw from the representation of the client in the matter. See R4% 1.1-+a,. 2n some cases, withdrawal alone might be insufficient. 2t may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. See R4% >.1. (11) 7here the client is a fiduciary, the lawyer may be charged with special obligations in dealings with a beneficiary. (1 ) 4aragraph +d, applies whether or not the defrauded party is a party to the transaction. 'ence, a lawyer must not participate in a transaction to effectuate criminal or fraudulent avoidance of tax liability. 4aragraph +d, does not preclude undertaking a criminal defense incident to a general retainer for legal services to a lawful enterprise. $he last clause of paragraph +d, recogni&es that determining the validity or interpretation of a statute or regulation may re*uire a course of action involving disobedience of the statute or regulation or of the interpretation placed upon it by governmental authorities. (1?) 2f a lawyer comes to know or reasonably should know that a client expects assistance not permitted by the Rules of 4rofessional %onduct or other law, or if the lawyer intends to act contrary to the client"s instructions, the lawyer must consult with the client regarding the limitations on the lawyer"s conduct. See R4% 1.>+a,+A,. RULE ,&9: #ILIGENCE 1 lawyer shall act with reasonable diligence and promptness in representing a client. Co%%ent (1) 1 lawyer should pursue a matter on behalf of a client despite opposition, obstruction, or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are re*uired to vindicate a client"s cause or endeavor. 1 lawyer must also act with commitment and dedication to the interests of the client and with &eal in advocacy upon the client"s behalf. 1 lawyer is not bound, however, to press for every advantage that might be reali&ed for a client. 9or example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See R4% 1. . $he lawyer"s duty to act with reasonable diligence does not re*uire the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect. (K) (>) .nless the relationship is terminated as provided in R4% 1.1-, a lawyer should carry through to conclusion all matters undertaken for a client. 2f a lawyer"s employment is limited to a specific matter, the relationship terminates when the matter has been resolved. 2f a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. 0oubt about whether a clientHlawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client"s affairs when the lawyer has ceased to do so. 9or example, if a lawyer has handled a #udicial or administrative proceeding that produced a result adverse to the client and the lawyer and the client have not agreed that the lawyer will handle the matter on appeal, the lawyer must consult with the client about the possibility of appeal before relin*uishing responsibility for the matter. See R4% 1.>+a,+ ,. .nless otherwise re*uired by law, whether the lawyer is obligated to prosecute the appeal for the client depends on the scope of
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the representation the lawyer has agreed to provide to the client. See R4% 1. G see also $enn. Sup. %t. R. 1? and 1>G $enn. %t. %rim. 1pp. R. 1 . RULE ,&.: CO66UNIC TION +a, 1 lawyer shall: +1, promptly inform the client of any decision or circumstance with respect to which the client"s informed consent, as defined in R4% 1.F+e,, is re*uired by these RulesG + , reasonably consult with the client about the means by which the client"s ob#ectives are to be accomplishedG +?, keep the client reasonably informed about the status of the matterG +>, promptly comply with reasonable re*uests for informationG and +A, consult with the client about any relevant limitation on the lawyer"s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of 4rofessional %onduct or other law. +b, 1 lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Co%%ent (1) Reasonable communication between the lawyer and the client is necessary for the client effectively to participate in the representation. Co%%unicating /ith Client ( ) 2f these Rules re*uire that a particular decision about the representation be made by the client, paragraph +a, +1, re*uires that the lawyer promptly consult with and secure the client"s consent prior to taking action, unless prior discussions with the client have resolved what action the client wants the lawyer to take. 9or example, a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance, unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authori&ed the lawyer to accept or to re#ect the offer. See R4% 1. +a,. (?) 4aragraph +a,+ , re*uires the lawyer to reasonably consult with the client about the means to be used to accomplish the client"s ob#ectives. 2n some situations L depending on both the importance of the action under consideration and the feasibility of consulting with the client L this duty will re*uire consultation prior to taking action. 2n other circumstances, such as during a trial when an immediate decision must be made, the exigency of the situation may re*uire the lawyer to act without prior consultation. 2n such cases, the lawyer must nonetheless act reasonably to inform the client of actions the lawyer has taken on the client"s behalf. 1dditionally, paragraph +a,+?, re*uires that the lawyer keep the client reasonably informed about the status of the matter, such as significant developments affecting the timing or the substance of the representation. (?a) 4aragraph +a,+ , re*uires the lawyer to reasonably consult with the client about the means by which the client"s ob#ectives are to be accomplished. $his Rule, however, does not attempt to specify the lawyer"s duties when the lawyer and client disagree about the means to be used to accomplish the client"s ob#ectives. 0isagreements between a lawyer and client about those means must be worked out by the lawyer and client within a framework defined by the law of agency, the right of the client to discharge the lawyer and the right of the lawyer to withdraw from the representation if the lawyer has a fundamental disagreement with the client. See R4% 1. , %omment ( ). (>) 1 lawyer"s regular communication with clients will minimi&e the occasions on which a client will need to re*uest information concerning the representation. 7hen a client makes a reasonable re*uest for information, however, paragraph +a,+>, re*uires prompt compliance with the re*uest, or if a prompt response is not feasible, that the lawyer, or a member of the lawyer"s staff, acknowledge receipt of the re*uest and advise the client when a response may be expected. %lient communications, including telephone calls, should be promptly returned or
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acknowledged. E21laining 6atters (A) $he client should have sufficient information to participate intelligently in decisions concerning the ob#ectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. 1de*uacy of communication depends in part on the kind of advice or assistance that is involved. 9or example, when there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement. 2n litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to in#ure or coerce others. 8n the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. $he guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client"s best interests, and the client"s overall re*uirements as to the character of representation. 2n certain circumstances, such as when a lawyer asks a client to consent to a representation affected by a conflict of interest, the client must give informed consent, as defined in R4% 1.F+e,. (-) 8rdinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. 'owever, fully informing the client according to this standard may be impracticable, for example, where the client is a child or has diminished capacity. See R4% 1.1>. 7hen the client is an organi&ation or group, it is often impossible or inappropriate to inform every one of its members about its legal affairsG ordinarily, the lawyer should address communications to the appropriate officials of the organi&ation. See R4% 1.1?. 7here many routine matters are involved, a system of limited or occasional reporting may be arranged with the client. RULE ,&:: CON4I#ENTI LIT7 O4 IN4OR6 TION +a, 1 lawyer shall not reveal information relating to the representation of a client unless: +1, the client gives informed consentG + , the disclosure is impliedly authori&ed in order to carry out the representationG or +?, the disclosure is permitted by paragraph +b, or re*uired by paragraph +c,. +b, 1 lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: +1, to prevent the client or another person from committing a crime, including a crime that is reasonably certain to result in substantial in#ury to the financial interest or property of another, unless disclosure is prohibited or restricted by R4% ?.?G + , to prevent the client from committing a fraud that is reasonably certain to result in substantial in#ury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer"s services, unless disclosure is prohibited or restricted by R4% ?.?G +?, to prevent, mitigate, or rectify substantial in#ury to the financial interests or property of another that is reasonably certain to result or has resulted from the client"s commission of a fraud in furtherance of which the client has used the lawyer"s services, unless disclosure is prohibited or restricted by R4% ?.?G +>, to secure legal advice about the lawyer"s compliance with these RulesG or +A, to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer"s representation of the client. +c, 1 lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes disclosure is necessary:

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+1, to prevent reasonably certain death or substantial bodily harmG + , to comply with an order of a tribunal re*uiring disclosure, but only if ordered to do so by the tribunal after the lawyer has asserted on behalf of the client all nonHfrivolous claims that the information sought by the tribunal is protected against disclosure by the attorneyHclient privilege or other applicable lawG or +?, to comply with R4% ?.?, >.1, or other law. Co%%ent (1) $his Rule governs the disclosure by a lawyer of information relating to the representation of a client during the lawyer"s representation of the client. See R4% 1.1C for the lawyer"s duties with respect to information provided to the lawyer by a prospective client, R4% 1.B+c,+ , for the lawyer"s duty not to reveal information relating to the lawyer"s prior representation of a former client and R4%s 1.C+b, and 1.B+c,+1, for the lawyer"s duties with respect to the use of such information to the disadvantage of clients and former clients. ( ) 1 fundamental principle in the clientHlawyer relationship is that, in the absence of the client"s informed consent, the lawyer must not reveal information relating to the representation. See R4% 1.F+e, for the definition of informed consent. $his contributes to the trust that is the hallmark of the clientHlawyer relationship. $he client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging sub#ect matter. $he lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. 1lmost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. 6ased upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld. (?) $he principle of clientHlawyer confidentiality is given effect by related bodies of law: the attorneyHclient privilege, the workHproduct doctrine, and the rule of confidentiality established in professional ethics. $he attorneyHclient privilege and workHproduct doctrine apply in #udicial and other proceedings in which a lawyer may be called as a witness or otherwise re*uired to produce evidence concerning a client. $he rule of clientH lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. $he confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. 1 lawyer may not disclose such information except as authori&ed or re*uired by the Rules of 4rofessional %onduct or other law. See also Scope. (?a) $he re*uirement of maintaining confidentiality of information relating to representation applies to government lawyers who may disagree with the policy goals that their representation is designed to advance. (?b) 2nformation made confidential by this Rule does not include what a lawyer learns about the law, legal institutions such as courts and administrative agencies, and similar public matters in the course of representing clients. 9or example, during legal research of an issue while representing a client, a lawyer may discover a particularly important precedent, devise a novel legal approach, or learn the preferable way to frame an argument before a particular #udge that is useful both in the immediate matter and in other representation. Such information is part of the general fund of information available to the lawyer. (>) 4aragraph +a, prohibits a lawyer from revealing information relating to the representation of a client. $his prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. 1 disclosure of information in a way that cannot reasonably be linked to the client does not reveal information relating to the representation of a client in violation of this Rule. 9or example, a lawyer"s use of hypotheticals to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved. (>a) .nless there is a reasonable likelihood of adverse effect to the client, this Rule does not prohibit a lawyer from disclosing information relating to representation of a client for purposes of providing professional
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assistance to other lawyers, whether informally, as in educational conversations among lawyers, or more formally, as in continuingHlegalHeducation lectures. $hus, a lawyer may generally confer with another lawyer +whether or not in the same firm, concerning an issue in which the disclosing lawyer has gained experience through representing a client in order to assist the other lawyer in representing that lawyer"s own clients. uthori;ed #isclosure (A) Except to the extent that the client"s instructions or special circumstances limit that authority, a lawyer is impliedly authori&ed to make disclosures about a client when appropriate in carrying out the representation. 2n some situations, for example, a lawyer may be impliedly authori&ed to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter. 5awyers in a firm may, in the course of the firm"s practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers. #isclosure d!erse to Client (-) 1lthough the public interest is usually best served by a strict rule re*uiring lawyers to preserve the confidentiality of information relating to the representation of their clients, the confidentiality rule is sub#ect to limited exceptions. 9or example, paragraph +b,+1, permits the lawyer to reveal information to the extent necessary to enable affected persons or appropriate authorities to prevent the client from committing a crime. (@) 4aragraph +b,+ , is another limited exception to the rule of confidentiality that permits disclosure to the extent necessary to prevent the client from perpetrating a fraud, as defined in R4% 1.F+d,, but only if the fraud is reasonably certain to result in substantial in#ury to the financial or property interests of another and the client has used or is using the lawyer"s services in furtherance of the fraud. Such a serious abuse of the clientHlawyer relationship by the client forfeits the protection of this Rule. $he client can, of course, prevent such disclosure by refraining from the wrongful conduct. 1lthough paragraphs +b,+1, and +b,+ , do not re*uire the lawyer to reveal the client"s misconduct, the lawyer may not counsel or assist the client in conduct the lawyer knows is criminal or fraudulent. See R4% 1. +d,. See R4% 1.1- with respect to the lawyer"s obligation or right to withdraw from the representation of the client in such circumstances, and R4% 1.1?+c,, which permits the lawyer, where the client is an organi&ation, to reveal information relating to the representation in limited circumstances. 2n addition, where the client is an organi&ation, the lawyer may be in doubt whether contemplated conduct will actually be carried out by the organi&ation"s constituents. 7here necessary to guide conduct in connection with this Rule, the lawyer may make in*uiry within the organi&ation as indicated in R4% 1.1?+b,. R4% ?.?, rather than paragraphs +b,+1, and +b,+ , of this Rule, governs disclosure of a client"s intention to commit per#ury or other crimes in connection with an ad#udicative proceeding. (C) 4aragraph +b,+?, addresses the situation in which a crime in furtherance of which a client has used a lawyer"s services has been consummated. 1lthough the client no longer has the option of preventing disclosure by refraining from the wrongful conduct, there will be situations in which the loss suffered by the affected person can be prevented, rectified or mitigated. 2n such situations, the lawyer may disclose information relating to the representation to the extent necessary to enable the affected persons to prevent or mitigate reasonably certain losses or to attempt to recoup their losses. 4aragraph +b,+?, does not apply when a person who has committed a crime or fraud thereafter employs a lawyer for representation concerning that offense. (B) 1 lawyer"s confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer"s personal responsibility to comply with these Rules. 2n most situations, disclosing information to secure such advice will be impliedly authori&ed for the lawyer to carry out the representation. Even when the disclosure is not impliedly authori&ed, paragraph +b,+>, permits such disclosure because of the importance of a lawyer"s compliance with the Rules of 4rofessional %onduct. 9or the protection of the client, such disclosures may be made only if they will be protected by the attorneyHclient privilege. (1F) 7here a legal claim or disciplinary charge alleges complicity of the lawyer in a client"s conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. $he same is true with respect to a claim brought by the
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lawyer involving the conduct or representation of a former client, such as when inHhouse counsel brings suit to redress his or her discharge from an organi&ational employer in retaliation for abiding by, or refusing to violate, a clear expression of public policy in the Rules of 4rofessional %onduct. See also R4% 1.1-, %omment (>). Such a charge can arise in a civil, criminal, disciplinary, or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together. $he lawyer"s right to respond arises when an assertion of such complicity has been made. 4aragraph +b,+A, does not re*uire the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. $he right to defend also applies, of course, where a proceeding has been commenced. 7here practicable and not pre#udicial to the lawyer"s ability to establish the defense, the lawyer should advise the client of the third party"s assertion and re*uest that the client respond appropriately. (11) 1 lawyer entitled to a fee is permitted by paragraph +b,+A, to prove the services rendered in a proceeding to collect it. $his aspect of the rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary. (1 ) 8ther law may re*uire that a lawyer disclose information about a client. 7hether such a law supersedes R4% 1.- is a *uestion of law beyond the scope of these Rules. 7hen disclosure of information relating to the representation appears to be re*uired by other law, the lawyer must discuss the matter with the client to the extent re*uired by R4% 1.>. 2f, however, the other law supersedes this Rule and re*uires disclosure, paragraph +c,+?, re*uires the lawyer to make such disclosures as are necessary to comply with the law. (1?) 4aragraph +b, permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified. 7here practicable, the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure. 2n any case, a disclosure adverse to the client"s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose. 2f the disclosure will be made in connection with a proceeding of a tribunal, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it, and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable. (1>) 4aragraph +b, permits but does not re*uire the disclosure of information relating to a client"s representation to accomplish the purposes specified in paragraphs +b,+1, through +b,+A,. 2n exercising the discretion conferred by this Rule, the lawyer may consider such factors as the nature of the lawyer"s relationship with the client and with those who might be in#ured by the client, the lawyer"s own involvement in the transaction, and any other factors that may extenuate the conduct in *uestion. 1 lawyer"s decision not to disclose as permitted by paragraph +b, does not violate this Rule. 0isclosure may be re*uired, however, by other Rules. Some Rules re*uire disclosure only if such disclosure would be permitted by paragraph +b,. See, e.g., R4%s C.1 and C.?. R4% ?.?, on the other hand, re*uires disclosure in some circumstances regardless of whether such disclosure is permitted by this Rule. See R4% ?.?+h, and +i,. 1lso, in some circumstances, R4%s >.1+b, and +c, re*uire disclosure of the lawyer"s withdrawal from the representation of a client and disaffirmation of written materials prepared for the client. #isclosure Other/ise Re<uired or uthori;ed (1>a) 4aragraph +c,+1, recogni&es the overriding value of life and physical integrity and re*uires disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Substantial bodily harm includes lifeHthreatening and debilitating illnesses and the conse*uences of child sexual abuse. Such harm is reasonably certain to occur if such in#uries will be suffered imminently or if there is a present and substantial threat that a person will suffer such in#uries at a later date if the lawyer fails to take action necessary to eliminate the threat. $hus, a lawyer who knows that a client has accidentally discharged toxic waste into a town"s water supply must reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a lifeHthreatening or debilitating disease and the lawyer"s disclosure is necessary to
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eliminate the threat or reduce the number of victims. (1>b) 1 lawyer might be called as a witness to give testimony concerning a client or might be ordered to reveal information relating to the representation of a client by a court or by another tribunal or governmental entity claiming authority pursuant to other law to compel the disclosure. 1bsent informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authori&ed by other law or that the information sought is protected against disclosure by the attorneyHclient privilege or other applicable law. 2n the event of an adverse ruling, the lawyer must consult with the client about the possibility of appeal to the extent re*uired by R4% 1.>. .nless review is sought, however, paragraph +c,+ , permits the lawyer to comply with the court"s order. cting Co%1etentl" to Preser!e Con0identialit" (1A) 1 lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthori&ed disclosure by the lawyer or other persons who are participating in the representation of the client or who are sub#ect to the lawyer"s supervision. See R4%s 1.1, A.1, and A.?. (1-) 7hen transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. $his duty, however, does not re*uire that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. 9actors to be considered in determining the reasonableness of the lawyer"s expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. 1 client may re*uire the lawyer to implement special security measures not re*uired by this Rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this Rule. 4or%er Client (1@) $he duty of confidentiality continues after the clientHlawyer relationship has terminated. See R4% 1.B+c,+ ,. See R4% 1.B+c,+1, for the prohibition against using such information to the disadvantage of the former client. RULE ,&,:: #ECLINING OR TER6IN TING REPRESENT TION +a, Except as stated in paragraph +c,, a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: +1, the representation will result in a violation of the Rules of 4rofessional %onduct or other lawG + , the lawyer"s physical or mental condition materially impairs the lawyer"s ability to represent the clientG or +?, the lawyer is discharged. +b, Except as stated in paragraph +c,, a lawyer may withdraw from representing a client if: +1, withdrawal can be accomplished without material adverse effect on the interests of the clientG + , the client persists in a course of action involving the lawyer"s services that the lawyer reasonably believes is criminal or fraudulentG +?, the client has used the lawyer"s services to perpetrate a crime or fraudG +>, the client insists upon taking action that the lawyer considers repugnant or imprudentG +A, the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer"s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilledG +-, the representation will result in an unanticipated and substantial financial burden on the lawyer or has been rendered unreasonably difficult by the clientG +@, other good cause for withdrawal existsG or
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+C, the client gives informed consent confirmed in writing to the withdrawal of the lawyer. +c, 1 lawyer must comply with applicable law re*uiring notice to or permission of a tribunal when terminating a representation. 7hen ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. +d, 1 lawyer who is discharged by a client, or withdraws from representation of a client, shall, to the extent reasonably practicable, take steps to protect the client"s interests. 0epending on the circumstances, protecting the client"s interests may include: +1, giving reasonable notice to the clientG + , allowing time for the employment of other counselG +?, cooperating with any successor counsel engaged by the clientG +>, promptly surrendering papers and property to which the client is entitled and any work product prepared by the lawyer for the client and for which the lawyer has been compensatedG +A, promptly surrendering any other work product prepared by the lawyer for the client, provided, however, that the lawyer may retain such work product to the extent permitted by other law but only if the retention of the work product will not have a materially adverse affect on the client with respect to the sub#ect matter of the representationG and +-, promptly refunding any advance payment of fees that have not been earned or expenses that have not been incurred. Co%%ent (1) 1 lawyer should not accept representation in a matter unless it can be performed competently, promptly, without improper conflict of interest, and to completion. 8rdinarily, a representation in a matter is completed when the agreedHupon assistance has been concluded. See R4%s 1. +c, and -.AG see also R4% 1.?, %omment (>). 6andator" Withdra/al ( ) 1 lawyer ordinarily must decline or withdraw from representation if the client demands that the lawyer engage in conduct that is illegal or violates the Rules of 4rofessional %onduct or other law. $he lawyer is not obliged to decline or withdraw simply because the client suggests such a course of conductG a client may make such a suggestion in the hope that a lawyer will not be constrained by a professional obligation. (?) 7hen a lawyer has been appointed to represent a client, withdrawal ordinarily re*uires approval of the appointing authority. See also R4% -. G $enn. Sup. %t. R. 1>. Similarly, court approval or notice to the court is often re*uired by applicable law before a lawyer withdraws from pending litigation. See, e.g., $enn. %rim. %t. 1pp. R. 1 . 0ifficulty may be encountered if withdrawal is based on the client"s demand that the lawyer engage in unprofessional conduct. $he court may re*uest an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. $he lawyer"s statement that professional considerations re*uire termination of the representation ordinarily should be accepted as sufficient. 5awyers should be mindful of their obligations to both clients and the court under R4%s 1.- and ?.?. #ischarge (>) 1 client has a right to discharge a lawyer at any time, with or without cause, sub#ect to liability for payment for the lawyer"s services. 7here future dispute about the withdrawal may be anticipated, it may be advisable for the lawyer to prepare a written statement reciting the circumstances. 2n the special case of inHhouse counsel, the organi&ational employer may also be liable for damages for retaliatory discharge in violation of public policy, but because of the client"s right to discharge the lawyer, reinstatement would not be an available remedy under such circumstances. (A) 7hether a client can discharge appointed counsel may depend on other law. 1 client seeking to do so should be given a full explanation of the conse*uences. $hese conse*uences may include a decision by the appointing authority that appointment of successor counsel is un#ustified, thus re*uiring selfHrepresentation by the client. (-) 2f the client has severely diminished capacity, the client may lack the legal capacity to discharge the lawyer, and in any event the discharge may be seriously adverse to the client"s interests. $he lawyer should make special effort to help the client consider the conse*uences and may take reasonably necessary protective action as provided in R4% 1.1>.

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O1tional Withdra/al (@) 1 lawyer may withdraw from representation in some circumstances. $he lawyer has the option to withdraw for any reason if it can be accomplished without material adverse effect on the client"s interests. 7ithdrawal is also #ustified if the client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent, for a lawyer is not re*uired to be associated with such conduct even if the lawyer does not further it. 7ithdrawal is also permitted if the lawyer"s services were misused in the past even if that would materially pre#udice the client. $he lawyer also may withdraw where the client insists on taking action that the lawyer considers repugnant or imprudent. $he lawyer may also withdraw without the need to provide any #ustification and even if withdrawal would result in a material adverse effect on the client"s interests if the client provides informed consent, confirmed in writing, to the lawyer"s withdrawal. (C) 1 lawyer may withdraw if the client refuses to abide by the terms of an agreement relating to the representation, such as an agreement concerning fees or court costs or an agreement limiting the ob#ectives of the representation. $he lawyer must, however, give the client reasonable notice of the lawyer"s intention to withdraw. ssisting the Client U1on Withdra/al (B) Even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the conse*uences to the client. 1fter discharge or withdrawal from representation of the client, the lawyer may retain work product prepared by the lawyer for the client, but for which the lawyer has not been compensated, as security for a fee only if doing so will not have a materially adverse effect on the client with respect to the sub#ect matter of the representation and to the extent permitted by law. $he lawyer may, at the lawyer"s own expense, make a copy of client file materials for retention by the lawyer prior to surrender. (1F) 7hether or not a lawyer for an organi&ation may under certain unusual circumstances have a legal obligation to the organi&ation after withdrawing or being discharged by the organi&ation"s highest authority is beyond the scope of these Rules. RULE 9&9: C N#OR TOW R# THE TRI8UN L +a, 1 lawyer shall not knowingly: +1, make a false statement of fact or law to a tribunalG or + , fail to disclose to the tribunal legal authority in the controlling #urisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counselG or +?, in an ex parte proceeding, fail to inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. +b, 1 lawyer shall not offer evidence the lawyer knows to be false, except that a lawyer who represents a defendant in a criminal proceeding, and who has been denied permission to withdraw from the defendant"s representation after compliance with paragraph +f,, may allow the client to testify by way of an undirected narrative or take such other action as is necessary to honor the defendant"s constitutional rights in connection with the proceeding. +c, 1 lawyer shall not affirm the validity of, or otherwise use, any evidence the lawyer knows to be false. +d, 1 lawyer may refuse to offer or use evidence, other than the testimony of a client who is a defendant in a criminal matter, that the lawyer reasonably believes is false, misleading, fraudulent or illegally obtained. +e, 2f a lawyer knows that the lawyer"s client intends to perpetrate a fraud upon the tribunal or otherwise commit an offense against the administration of #ustice in connection with the proceeding, including improper conduct toward a #uror or a member of the #ury pool, or comes to know, prior to the conclusion of the proceeding, that the client has, during the course of the lawyer"s representation, perpetrated such a crime or fraud, the lawyer shall advise the client to refrain from, or to disclose or otherwise rectify, the crime or fraud and shall discuss with the
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client the conse*uences of the client"s failure to do so. +f, 2f a lawyer, after discussion with the client as re*uired by paragraph +e,, knows that the client still intends to perpetrate the crime or fraud, or refuses or is unable to disclose or otherwise rectify the crime or fraud, the lawyer shall seek permission of the tribunal to withdraw from the representation of the client and shall inform the tribunal, without further disclosure of information protected by R4% 1.-, that the lawyer"s re*uest to withdraw is re*uired by the Rules of 4rofessional %onduct. +g, 1 lawyer who, prior to conclusion of the proceeding, comes to know that the lawyer has offered false tangible or documentary evidence shall withdraw or disaffirm such evidence without further disclosure of information protected by R4% 1.-. +h, 1 lawyer who, prior to the conclusion of the proceeding, comes to know that a person other than the client has perpetrated a fraud upon the tribunal or otherwise committed an offense against the administration of #ustice in connection with the proceeding, and in which the lawyer"s client was not implicated, shall promptly report the improper conduct to the tribunal, even if so doing re*uires the disclosure of information otherwise protected by R4% 1.-. +i, 1 lawyer who, prior to conclusion of the proceeding, comes to know of improper conduct by or toward a #uror or a member of the #ury pool shall report the improper conduct to the tribunal, even if so doing re*uires the disclosure of information otherwise protected by R4% 1.-. +#, 2f, in response to a lawyer"s re*uest to withdraw from the representation of the client or the lawyer"s report of a per#ury, fraud, or offense against the administration of #ustice by a person other than the lawyer"s client, a tribunal re*uests additional information that the lawyer can only provide by disclosing information protected by R4% 1.- or 1.B+c,, the lawyer shall comply with the re*uest, but only if finally ordered to do so by the tribunal after the lawyer has asserted on behalf of the client all nonHfrivolous claims that the information sought by the tribunal is protected by the attorneyHclient privilege. Co%%ent (1) $his Rule governs the conduct of a lawyer who is representing a client in connection with the proceedings of a tribunal, such as a court or an administrative agency acting in an ad#udicative capacity. 2t applies not only when the lawyer appears before the tribunal, but also when the lawyer participates in activities conducted pursuant to the tribunal"s authority, such as preHtrial discovery in a civil matter. ( ) $he advocate"s task is to present the client"s case with persuasive force. 4erformance of that duty while maintaining confidences of the client is *ualified by the advocate"s duty to refrain from assisting a client to perpetrate a fraud upon the tribunal. 'owever, an advocate does not vouch for the evidence submitted in a causeG the tribunal is responsible for assessing its probative value. Re1resentations 3" a La/"er (?) 1n advocate is responsible for pleadings and other documents prepared for litigation, but is usually not re*uired to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client"s behalf, and not assertions by the lawyer. %ompare R4% ?.1. 'owever, an assertion purporting to be on the lawyer"s own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent in*uiry. $here are circumstances where failure to make a disclosure is the e*uivalent of an affirmative misrepresentation. $he obligation prescribed in R4% 1. +d, not to counsel a client to commit, or assist the client in committing a fraud, applies in litigation. Regarding compliance with R4% 1. +d,, see the %omment to that Rule and also %omments (1) and (@) to R4% C.>. 6isleading Legal rgu%ent (>) 5egal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. 1 lawyer is not re*uired to make a disinterested exposition of the law, but must recogni&e the existence of
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pertinent legal authorities. 9urthermore, as stated in paragraph +a,+ ,, an advocate has a duty to disclose directly adverse authority in the controlling #urisdiction that has not been disclosed by the opposing party. $he underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case. E2 Parte Proceedings (A) 8rdinarily, an advocate has the limited responsibility of presenting one side of the matters that a tribunal should consider in reaching a decisionG the conflicting position is expected to be presented by the opposing party. 'owever, in an ex parte proceeding, such as an application for a temporary restraining order or one conducted pursuant to R4% 1.@+c,, there is no balance of presentation by opposing advocates. $he ob#ect of an ex parte proceeding is nevertheless to yield a substantially #ust result. $he #udge has an affirmative responsibility to accord the absent party #ust consideration. 1s provided in paragraph +a,+?,, the lawyer for the represented party has the correlative duty to make disclosures of material facts known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision. Re0using to O00er or Use 4alse E!idence (-) 7hen evidence that a lawyer knows to be false is provided by a person who is not the client, the lawyer must refuse to offer it regardless of the client"s wishes. $he lawyer must similarly refuse to offer a client"s testimony that the lawyer knows to be false, except that paragraph +b, permits the lawyer to allow a criminal defendant to testify by way of narrative if the lawyer"s re*uest to withdraw, as re*uired by paragraph +f,, is denied. 4aragraph +c, precludes a lawyer from affirming the validity of, or otherwise using, any evidence the lawyer knows to be false, including the narrative testimony of a criminal defendant. (@) 1s provided in paragraph +d,, a lawyer has authority to refuse to offer or use testimony or other proof that the lawyer believes is untrustworthy. 8ffering such proof may reflect adversely on the lawyer"s ability to discriminate in the *uality of evidence and thus impair the lawyer"s effectiveness as an advocate. 6ecause of the special protections historically provided criminal defendants, however, this Rule does not permit a lawyer to refuse to offer or use the testimony of such a client because the lawyer reasonably believes the testimony to be false. .nless the lawyer knows the testimony will be false, the lawyer must honor the client"s decision to testify. Wrongdoing in d=udicati!e Proceedings 3" Clients and Others (C) 1 lawyer who is representing a client in an ad#udicative proceeding and comes to know prior to the completion of the proceeding that the client has perpetrated a fraud or committed per#ury or another offense against the administration of #ustice, or intends to do so before the end of the proceeding, is in a difficult position in which the lawyer must strike a professionally responsible balance between the lawyer"s duties of loyalty and confidentiality owed to the client and the e*ually important duty of the lawyer to avoid assisting the client with the consummation of the fraud or per#ury. 2n all such cases, paragraph +e, re*uires the lawyer to advise the client to desist from or to rectify the crime or fraud and inform the client of the conse*uences of a failure to do so. $he hard *uestions come in those rare cases in which the client refuses to reveal the misconduct and prohibits the lawyer from doing so. (B) 4aragraph +f, sets forth the lawyer"s responsibilities in situations in which the lawyer"s client is implicated in the misconduct. 2n these situations, the Rules do not permit the lawyer to report the client"s offense. %onfidentiality under R4% 1.- prevails over the lawyer"s duty of candor to the tribunal. 8nly if the client is implicated in misconduct by or toward a #uror or a member of the #ury pool does the lawyer"s duty of candor to the tribunal prevail over confidentiality. See paragraph +i,. (1F) 1lthough the lawyer may not reveal the client"s misconduct, the lawyer must not voluntarily continue to represent the client, for to do so without disclosure of the misconduct would assist the client to consummate the offense. $he Rule, therefore, re*uires the lawyer to seek permission of the tribunal to withdraw from the representation of the client. $o increase the likelihood that the tribunal will permit the lawyer to withdraw, the lawyer is also re*uired to inform the tribunal that the re*uest for permission to withdraw is re*uired by the Rules of 4rofessional %onduct. $his statement also serves to advise the tribunal that something is amiss without
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providing the tribunal with any of the information related to the representation that is protected by R4% 1.-. $hese Rules, therefore, are intended to preserve confidentiality while re*uiring the lawyer to act so as not to assist the client with the consummation of the fraud. $his reflects a #udgment that the legal system will be best served by rules that encourage clients to confide in their lawyers, who in turn will advise them to rectify the fraud. Eany, if not most, clients will abide by their lawyer"s advice, particularly if the lawyer spells out the conse*uences of failing to do so. 1t the same time, our legal system and profession cannot permit lawyers to assist clients who refuse to follow their advice and insist on consummating an ongoing fraud. (11) 8nce the lawyer has made a re*uest for permission to withdraw, the tribunal may grant or deny the re*uest to withdraw without further in*uiry or may seek more information from the lawyer about the reasons for the lawyer"s re*uest. 2f the #udge seeks more information, the lawyer must resist disclosure of information protected by R4% 1.-, but only to the extent that the lawyer may do so in compliance with R4% ?.1. 2f the lawyer cannot make a nonHfrivolous argument that the information sought by the tribunal is protected by the attorneyHclient privilege, the lawyer must respond truthfully to the in*uiry. 2f, however, there is a nonHfrivolous argument that the information sought is privileged, paragraph +h, re*uires the lawyer to invoke the privilege. 7hether to seek an interlocutory appeal from an adverse decision with respect to the claim of privilege is governed by R4%s 1. and ?.1. (1 ) 2f a lawyer is re*uired to seek permission from a tribunal to withdraw from the representation of a client in either a civil or criminal proceeding because the client has refused to rectify a per#ury or fraud, it is ultimately the responsibility of the tribunal to determine whether the lawyer will be permitted to withdraw from the representation. 2n a criminal proceeding, however, a decision to permit the lawyer"s withdrawal may implicate the constitutional rights of the accused and may even have the effect of precluding further prosecution of the client. /otwithstanding this possibility, the lawyer must seek permission to withdraw, leaving it to the prosecutor to ob#ect to the re*uest and to the tribunal to ultimately determine whether withdrawal is permitted. 2f permission to withdraw is not granted, the lawyer must continue to represent the client, but cannot assist the client in consummating the fraud or per#ury by directly or indirectly using the per#ured testimony or false evidence during the current or any subse*uent stage of the proceeding. 1 defense lawyer who complies with these rules acts professionally without regard to the effect of the lawyer"s compliance on the outcome of the proceeding. 4alse #ocu%entar" or Tangi3le E!idence (1?) 2f a lawyer comes to know that tangible items or documents that the lawyer has previously offered into evidence have been altered or falsified, paragraph +g, re*uires that the lawyer withdraw or disaffirm the evidence, but does not otherwise permit disclosure of information protected by R4% 1.-. 6ecause disaffirmance, like withdrawal, can be accomplished without disclosure of information protected by R4% 1.-, it is re*uired when necessary for the lawyer to avoid assisting a fraud on the tribunal. Cri%es or 4rauds 3" Persons Other than the Client (1>) 4aragraph +h, applies if the lawyer comes to know that a person other than the client has engaged in misconduct in connection with the proceeding. .pon learning prior to the completion of the proceeding that such misconduct has occurred, the lawyer is re*uired by paragraph +e, to promptly reveal the offense to the tribunal. $he client"s interest in protecting the wrongdoer is not sufficiently important as to override the lawyer"s duty of candor to the court and to take affirmative steps to prevent the administration of #ustice from being tainted by per#ury, fraud, or other improper conduct. 6isconduct 8" or To/ard $urors or 6e%3ers o0 $ur" Pool (1A) 6ecause #ury tampering undermines the institutional mechanism that our adversary system of #ustice uses to determine the truth or falsity of testimony or evidence, paragraph +i, re*uires a lawyer who learns prior to the completion of the proceeding that there has been misconduct by or directed toward a #uror or prospective #uror must reveal the misconduct and the identity of the perpetrator to the tribunal, even if so doing re*uires disclosure of information protected by R4% 1.-. 4aragraph +i, does not re*uire that the lawyer seek permission to withdraw from the further representation of the client in the proceeding, but in cases in which the client is implicated in the
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#ury tampering, the lawyer"s continued representation of the client may violate R4% 1.@. R4% 1.1-+a,+1, would then re*uire the lawyer to seek permission to withdraw from the case. Cri%e or 4raud #isco!ered 0ter Conclusion o0 Proceeding (1-) 2n cases in which the lawyer learns of the client"s misconduct after the termination of the proceeding in which the misconduct occurred, the lawyer is prohibited from reporting the client"s misconduct to the tribunal. Even though the lawyer may have innocently assisted the client to perpetrate the offense, the lawyer should treat this information as the lawyer would treat information with respect to any past crime a client might have committed. $he client"s offense will be deemed completed as of the conclusion of the proceeding. 1n offense that occurs at an earlier stage in the proceeding will be deemed an ongoing offense until the final stage of the proceeding is completed. 1 proceeding has concluded within the meaning of this Rule when a final #udgment in the proceeding has been affirmed on appeal or the time for an appeal has passed. Constitutional Re<uire%ents (1@) $hese Rules apply to defense counsel in criminal cases, as well as in other instances. 'owever, the definition of the lawyer"s ethical duty in such a situation may be *ualified by constitutional provisions for due process and the right to counsel in criminal cases. $he obligation of the advocate under these Rules is subordinate to any such constitutional re*uirement.

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>?9 S&W&*d :@. A,>>?B Edmund George ZAGORSKI, Appellant, v. STATE of Tennessee, Appellee. Su1re%e Court o0 Tennessee( at Nash!ille& 0ecember @, 1BBC. Rehearing 0enied 9ebruary 1, 1BBB. -AAM-AA Samuel 5. 9elker N =oseph 9. 7elborn, /ashville, for 1ppellant. =ohn Onox 7alkup, 1ttorney 3eneral and Reporter, Eichael E. Eoore, Solicitor 3eneral, 1my 5. $arkington, Senior %ounsel, /ashville, $ennessee, for 1ppellee. OPINION 61ROER, =. 7e granted this postHconviction appeal to determine whether there is ineffective assistance of counsel where, at the express instruction of a competent and fully informed defendant, defense counsel does not investigate or present mitigating evidence at the sentencing phase of a capital trial. 9or the reasons provided herein, we hold that there is not. BACKGROUND $he petitioner, Edmund Iagorski, was convicted in 1BC> of the first degree premeditated murders of =ohn 0ale 0otson and =immy 4orter. $he evidence at trial was that petitioner lured the two men into a wooded area in Robertson %ounty under the pretense of a drug deal. 8nce there, petitioner shot both men and slit their throats, taking a substantial sum of money they had brought to purchase mari#uana. (1) $he sentencing phase of the trial was held immediately after the #ury returned its guilty verdicts. /either the State nor the defense offered any additional proof. $he #ury sentenced the petitioner to death based upon two aggravating circumstances: +1, the murders were committed by the defendant while he was engaged in committing robbery of the victims, and + , the murders were especially heinous, atrocious, or cruel in that they involved torture or depravity of mind. $enn.%ode 1nn. P ?BH1?H F?+i,+@,, +A, +1BC ,. 9ollowing his unsuccessful direct appeal to this %ourt, the petitioner filed a postHconviction petition alleging, among other things, that he was denied his constitutional right to the effective assistance of counsel at trial. 4etitioner contends that his two trial lawyers were ineffective in failing to investigate and to present mitigating evidence during the sentencing portion of his trial. 7e affirm the dismissal of his postHconviction petition. $he evidence introduced at the postHconviction hearing was undisputed. 1lthough the petitioner himself did not testify, he introduced the testimony of =effrey 6lum, a program specialist with the 0avidson %ounty 4ublic 0efender"s 8ffice, and his two former lawyers, 5arry 7ilks and =ames 7alton. ( ) Sheriff $ed Emery and 0etective Ronnie 4erry from the Robertson %ounty Sheriff"s 0epartment testified for the State. 6efore trial, petitioner made it clear to his counsel that he wanted to focus exclusively -A-M-A- on avoiding a first degree murder conviction. 'e une*uivocally informed counsel that if convicted, he preferred death instead of a possible sentence of life in prison. %ounsel advised the petitioner about the importance of and the need to investigate and use information about his family backgroundG however, petitioner prohibited his attorneys from having any contact with his family or delving into his past. 'e further instructed counsel that no mitigating evidence was to be presented at the sentencing phase of trial. 0espite petitioner"s explicit instructions, counsel took certain steps to investigate his family background. %ounsel
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initially sought funds to travel to the petitioner"s home town in EichiganG however, they did not go because of his strict instructions. Er. 7ilks instead contacted the petitioner"s mother by telephone. Ers. Iagorski spoke with a heavy 4olish accent and was immature and very childlike, apparently the result of a childhood head in#ury. 7hile she referred to the petitioner as !my boy! and was obviously concerned about his fate, she was of little assistance and provided no information that could be pursued for mitigation. %ounsel also obtained the services of an independent psychiatrist, 0r. 6en 6ursten, who examined the petitioner and confirmed that he was both competent and ineligible for an insanity defense. 0r. 6ursten"s findings and proposed testimony were not helpful to the defense and counsel chose not to call him to testify at trial. 8n several occasions during the trial court proceedings, counsel advised petitioner of his rights and the potential conse*uences of his decision to forego any investigation or use of his family background and other mitigating evidence. $he petitioner was adamant in his chosen course of action and he expressed full awareness of the ramifications of the death penalty. %ounsel testified that the petitioner"s instructions forced them to choose between honoring his wishes and following their own professional #udgment. 9or guidance under those circumstances, counsel contacted the 6oard of 4rofessional Responsibility +64R,. $he 64R issued an informal opinion (?) advising counsel to fully inform petitioner that he had a right to pursue a defense of his choice, but that his chosen defense strategy conflicted with counsel"s ethical responsibilities. 2f petitioner persisted, then counsel were advised that they should tell him that they would file a motion to withdraw from their representation and insure that he was competent to represent himself at all stages of the trial where the conflict was imminent. %ounsel, however, never considered withdrawing from petitioner"s case because of their professional obligation to him. $hey represented him during the entire trial and followed his chosen defense strategy of preventing a first degree murder conviction and foregoing mitigating evidence. 1fter the guilty verdicts of first degree murder, counsel again conferred with petitioner about the need to pursue mitigating evidence. 'e directed counsel to do nothing and say nothing at the sentencing hearing because he wanted the death penalty. 8nce again, counsel explained to petitioner the possible conse*uences of his decision. 1lthough initially resistant, the petitioner finally allowed his lawyers to make a closing argument on his behalf at the sentencing hearing. 'owever, counsel did not argue any mitigating factors in their closing because they believed the trial court had limited their argument in that regard. Er. 7ilks testified that he intended to argue that the victims were drug dealers who were armed, intoxicated, and dangerous. 'owever, he believed the only available arguments for the defense were those supported by the evidence, leaving them with little recourse since they did not present any proof at the sentencing phase. $he trial court refused to instruct the #ury on three re*uested mitigating factors: the victims" participation in criminal activity, petitioner"s lack of prior violent convictions, and petitioner"s youth. Essentially, counsels" argument during the sentencing phase was a plea for mercy. $estimony at the evidentiary hearing revealed potential mitigating evidence with respect -A@M-A@ to the petitioner"s family background that had been available at the time of trial. (>) $he petitioner grew up impoverished in $ecumseh, Eichigan where he lived in a tenement apartment and then later in a small house. 'is mother was always critical of him because she wanted a daughter. 1n aunt helped care for the petitioner during his childhood because his mother was impaired by a brain in#ury. 6etween the ages of eight and ten, the petitioner could not read or write and he developed a stutter. 1lthough he suffered from poor vision, he went without eye glasses for over a year. 4etitioner"s father had little or no involvement in his life. 7hen petitioner was about fourteen years old, a man in his neighborhood took him under his wing and involved him in the 6oy Scouts. /evertheless, the petitioner began to use drugs and alcohol at an early age. 'is grades in school were below average and he likely did not finish high school. 'e had minor skirmishes with the law as a #uvenile and federal drug convictions as an adultG however, he had no convictions of violent crimes prior to the commission of the murders.

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9ollowing the evidentiary hearing, the trial court held that the petitioner failed to prove that his trial lawyers were ineffective. $he trial court found that counsel conducted the defense at the sentencing hearing based upon instructions from the petitioner, who was competent to aid in his own defense and to have input in the trial decisions. $he trial court"s decision was affirmed by the %ourt of %riminal 1ppeals. $he intermediate court determined that counsel were not ineffective for the alleged failure to investigate mitigating evidence because petitioner had not shown any resulting pre#udice. 1s to the failure to introduce mitigating evidence, the intermediate court concluded that counsel performed effectively in carrying out petitioner"s demands after informing petitioner of the circumstances and the conse*uences of his decision. 7e affirm the #udgments of the courts below and hold that when a competent and fully informed defendant instructs counsel not to investigate or present mitigating evidence at trial, counsel will not later be ad#udged ineffective for following those instructions. EFFECTIVE ASSISTANCE OF COUNSEL $o prevail on a claim of ineffective counsel in this proceeding, petitioner must prove by a preponderance of the evidence(A) that the advice given or services rendered by his counsel fell below the range of competence demanded of attorneys in criminal cases. Baxter v. Rose, A ? S.7. d B?F, B?- +$enn.1B@A,. 'e must also demonstrate pre#udice by showing a reasonable probability that but for counsels" error, the result of the proceeding would have been different. Strickland v. Was ington, >-- ..S. --C, -C@, 1F> S.%t. FA , F->, CF 5.Ed. d -@> +1BC>,G !oad v. State, B?C S.7. d ?-?, ?-B +$enn.1BB-,. $he petitioner contends that his trial attorneys were ineffective in failing to investigate and present mitigating evidence despite his instructions to the contrary. 3enerally, a defense attorney"s failure to investigate and prepare for a possible capital sentencing hearing is below the range of competence demanded of criminal attorneys. See "ali#ornia v. Bro$n, >@B ..S. A?C, 1F@ S.%t. C?@, B? 5.Ed. d B?> +1BC@,G !oad, B?C S.7. d at ?-B.(-) 1lthough there is no re*uirement that counsel present mitigating evidence during the sentencing phase of -ACM-AC trial, (@) this %ourt has emphasi&ed the importance of mitigating evidence in capital cases !because of the belief ... that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems may be less culpable than defendants who have no such excuse.! !oad, B?C S.7. d at ?-B +*uoting "ali#ornia v. Bro$n, >@B ..S. A?C, A>>, 1F@ S.%t. C?@, C>1, B? 5.Ed. d B?> +1BC@,,. 2n this case, petitioner"s counsel recogni&ed the importance of exploring and presenting mitigating evidence. $hey yielded, however, to the petitioner"s demands that no evidence be offered in mitigation upon his conviction of first degree murder. $he petitioner understood that he faced the death penalty, but he nevertheless instructed his attorneys to refrain from any investigation into his family background and to essentially forego any defense at the sentencing phase. 7e distinguish petitioner"s case from those in which counsel has been ad#udged ineffective for making the decision not to investigate or present mitigating evidence. See e.g. A%stin v. Bell, 1 - 9.?d C>?, C>B +-th %ir.1BB@,, cert. denied QQQ ..S. QQQ, 11C S.%t. 1A -, 1>F 5.Ed. d -@@ +1BBC,G !oad, B?C S.7. d at ?@F. 2t is undisputed that counsels" inaction in this case was solely and alone the result of petitioner"s instruction not to pursue any mitigation evidence. .nder these exceptional circumstances, the critical issue is whether a lawyer should follow the lawful demands of his client when those demands may cause detriment to the client"s case. $his %ourt has adopted the %ode of 4rofessional Responsibility to assist and guide lawyers in their relationships with clients and others. See $enn. Sup.%t. R. C. 3enerally, the client has exclusive authority to make decisions about his or her case, which are binding upon the lawyer if made within the framework of the law. $enn. Sup.%t. R. C, E% @H@. 9or example, in criminal cases, it is the client who decides what plea to enter and whether an appeal should be taken once he or she has been fully advised by counsel. &d.

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%ounsel"s role in a criminal case is to assist the defendant in making a defense and to represent the defendant before the court. State v. 'ranklin, @1> S.7. d A , - +$enn.1BC-,. $he assistance of counsel insures, among other things, that the defendant is fully advised of his or her rights, the available defense strategies, and the conse*uences of pursuing one strategy over another. 1ccording to the %ode of 4rofessional Responsibility, !a lawyer should exert the lawyer"s best efforts to insure that decisions of the client are made only after the client has been informed of relevant considerations.! $enn. Sup.%t. R. C, E% @HC. (C) %ounsel may even warn the client about harsh conse*uences that might result from pursuing an illHadvised, but legally permissible strategy. &d. .ltimately, however, the right to a defense belongs to the defendant. 'ranklin, @1> S.7. d at - . %ounsel must remember that decisions, including whether to forego a legally available ob#ective because of nonHlegal factors, are for the client and not the lawyer. $enn. Sup.%t. R. C, E% @HC. 1s =ustice 7illiam 6rennan of the .nited States Supreme %ourt has stated: (t)he defendant, and not his lawyer or the State, will bear the personal conse*uences of a conviction. 2t is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. 1nd although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of !that respect for the individual which is the lifeblood of the law.! &llinois v. Allen, ?B@ ..S. ??@, ?AFHA1, BF S.%t. 1FA@, 1F->, A 5.Ed. d ?A? +6rennan, =., concurring,. 'aretta v. "ali#ornia, > ..S. CF-, BA S.%t. A A, A>1, >A 5.Ed. d A- +1B@A, +footnote omitted,.

7hen a competent defendant knowingly and voluntarily chooses a lawful course -ABM-AB of action or defense strategy, counsel is essentially bound by that decision. 2f the defendant is pre#udiced in some respect by his own decision, he should not later be heard to complain about those conse*uences by challenging the conduct of his counsel. See State v. D%nn, > $enn. AA, >A? S.7. d @@@, @@B +$enn.1B@F,G D%kes v. State, A@C S.7. d -AB, --A +$enn.%rim.1pp.1B@C,. %ounsel, in this case, reasonably represented the petitioner despite his chosen defense strategy. 9irst, counsel vigorously defended the petitioner during the guilt phase of the trial. Eoreover, counsel spoke to petitioner"s mother and obtained the services of 0r. 6ursten, a forensic psychiatrist. Er. 7ilks testified that petitioner"s mother provided little information which could be pursued further. 0r. 6ursten examined the petitioner and concluded that he was mentally competent and ineligible for any form of insanity defense. 0r. 6ursten told counsel that if he testified, he would explain that the petitioner could be a !mean person.! %ounsel made a strategic decision not to present 0r. 6ursten"s testimony at trial. 9urthermore, counsel properly advised the petitioner of the need for mitigating evidence and the potentially devastating conse*uences of his decision to forego such evidence. %ounsel testified that they had no difficulty communicating with the petitioner and they consulted him at every critical stage of the proceedings. 4etitioner was adamant and did not waiver in his decision after counsel fully advised him of his rights and the risks involved. %ounsel had no reservations about petitioner"s competency to make decisions and to understand the conse*uences of his chosen defense strategy. 6efore trial, petitioner"s competency to stand trial and the feasibility of an insanity defense were evaluated at Eiddle $ennessee Eental 'ealth 2nstitute +E$E'2,. $he evaluators found the petitioner competent to assist in his own defense and ineligible for an insanity defense. 1s stated, 0r. 6ursten"s separate evaluation also affirmed the petitioner"s competency. $he record before us clearly shows that the petitioner made an intelligent and voluntary decision not to investigate or present mitigating evidence, and that he was competent to make that decision. %ounsel fulfilled their role as advocates for the petitioner and were not ineffective in abiding by his informed decision to forego the use of mitigating evidence. 6ecause we hold that counsels" performance did not fall below an ob#ective standard of competence, it is unnecessary for us to address the issue of pre#udice. Strickland, >-- ..S. at -B@, 1F> S.%t. at F-BG !oad, B?C S.7. d at ?@F.
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THE ETHICS OPINION 9inally, it is appropriate to address the ethical considerations raised in 9ormal Ethics 8pinion C>H9H@? of the 6oard of 4rofessional Responsibility. 1s previously mentioned, petitioner"s counsel sought advice from the 64R on how to represent the petitioner given the uni*ue circumstances in this case. $he 64R recogni&ed that petitioner"s defense strategy was both moral and legal, but opined that it was nevertheless in conflict with counsels" duties as defense lawyers. $he 64R recommended to counsel the following steps to address the conflict with the petitioner: %ounsel should fully inform the accused of his legal right to conduct a defense of his choice as guaranteed by the %onstitution. $he accused should be fully advised by counsel that his rights and interests are in conflict with counsel"s moral beliefs and ethical responsibilities. 2n (sic) event the accused maintains his insistence on no actions or arguments on his behalf against the death penalty being imposed then counsel should advise the accused that a motion to withdraw from those portions of the trial will be filed with the court. $he conse*uences of this action should be fully explained to the accused. $he court should be fully informed of the conflicts between counsel and the accused. %ounsel should seek ad#udication that the accused is competent to represent himself during ... any ... portion of the trial where the conflict is imminent. %ounsel should move the court to withdraw from representation during the portion of the trial where the conflict is manifested. 2n the event the court fails to grant such motions, the attorney --FM--F should seek an immediate review by the appellate court. See 6oard of 4rofessional Responsibility, 9ormal 8p. C>H9H@? +1BC>,. %ounsel followed the 64R"s opinion in part by informing the petitioner of his rights and how his chosen defense strategy conflicted with his legal interests. %ounsel, however, chose to continue their representation of the petitioner and never informed the trial court of their conflict. .nder the circumstances in this case, counsel had no obligation to seek to terminate their representation of the petitioner. 7ithdrawal of counsel is governed by 0isciplinary Rule H11F of the %ode of 4rofessional Responsibility, and in indigent criminal cases, by $ennessee %ode 1nnotated section >FH1>H FA. 8ur review of those provisions reveals that no grounds existed for mandatory withdrawal. $he petitioner never expressed a desire to discharge his appointed counsel and there was no evidence that counsels" services were meant to cause harm to another person or that the representation would result in the violation of a 0isciplinary Rule. See $enn. Sup.%t. R. C, 0R H11F+6,. Eoreover, even if counsel had sought to withdraw from petitioner"s case, such action would have re*uired permission from the trial court. $enn.%ode 1nn. P >FH1>H FA +1BC>,G $enn. Sup.%t. R. C, 0R H11F+1,+1,. $ennessee %ode 1nnotated section >FH1>H FA provides that a courtHappointed lawyer may withdraw from representation only upon the trial court"s finding of good cause. 1lthough the circumstances in this case may have risen to the level of good cause, we will not speculate as to whether the trial court would have granted a withdrawal in the middle of this capital trial. %ounsel determined that the petitioner"s legal interests would be served best if they continued their representation throughout the penalty phase of the trial. 7e are persuaded that counsel acted both reasonably and competently in representing the petitioner instead of seeking to withdraw from his case.(B) 'owever, we are concerned that at no time did counsel inform the trial #udge on the record about the circumstances or their decision to carry out the petitioner"s defense strategy. 2n prospective cases, when a defendant, against his counsel"s advise, refuses to permit the investigation and presentation of mitigating evidence, counsel must inform the trial court of these circumstances on the record, outside the presence of the #ury. $he trial court must then take the following steps to protect the defendant"s interests and to preserve a complete record: 1. 2nform the defendant of his right to present mitigating evidence and make a determination on the
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record whether the defendant understands this right and the importance of presenting mitigating evidence in both the guilt phase and sentencing phase of trialG . 2n*uire of both the defendant and counsel whether they have discussed the importance of mitigating evidence, the risks of foregoing the use of such evidence, and the possibility that such evidence could be used to offset aggravating circumstancesG and ?. 1fter being assured the defendant understands the importance of mitigation, in*uire of the defendant whether he or she desires to forego the presentation of mitigating evidence. (1F) $his procedure will insure that the accused has intelligently and voluntarily made a decision to forego mitigating evidence. $rial #udges, however, shall not in*uire of counsel as to the content of any known mitigating evidence. $o hold otherwise would potentially force counsel to act against the client"s --1M--1 wishes and would risk the disclosure of privileged or confidential information. CONCLUSION 7e recogni&e the professional, personal, and moral conflicts that lawyers encounter when representing a defendant who chooses to forego the use of mitigating evidence. /evertheless, we must preserve a competent defendant"s right to make the ultimate decisions in his or her case once having been fully informed of the rights and the potential conse*uences involved. 1ccordingly, when a defendant instructs counsel not to investigate or present mitigating evidence, counsel must follow the procedure outlined in this case to insure on the record that the defendant is competent and fully aware of his rights and the possible conse*uences of that decision. $hereafter, counsel will not be ad#udged ineffective for abiding by the defendant"s lawful decision. $he #udgment of the %ourt of %riminal 1ppeals is affirmed. .nless stayed by this %ourt or other appropriate authority, the sentence of death shall be carried out as provided by law on the 1Ath day of 1pril, 1BBB. 1/0ERS8/, %.=., 0R878$1, 62R%' and '850ER, ==., concur.
(1) 9or a more complete recitation of the facts, see this %ourt"s opinion in petitioner"s direct appeal. State v. (agorski, @F1 S.7. d CFC, C1FH11 +$enn.1BCA,, cert. denied >@C ..S. 1F1F, 1F- S.%t. ??FB, B 5.Ed. d @ +1BC-,. ( ) Er. 7alton is now a %ircuit %ourt #udge in the /ineteenth =udicial 0istrict. (?) $he opinion was later adopted by the 64R as 9ormal Ethics 8pinion C>H9H@?. (>) Evidence of petitioner"s background was provided by =effrey 6lum. 'e contacted several members of the petitioner"s family before the evidentiary hearing. (A) $he petition was filed in 1BCB and is governed by the preH1BBA 4ostH%onviction 4rocedure 1ct. See $enn.%ode 1nn. PP >FH?FH1F1R 1 > +repealed 1BBA,. $here is no explanation in the record for the lengthy delay between the filing of the petition and the evidentiary hearing held in late 1BBA. (-) 5awyers representing capital defendants have a duty to prepare for both the guilt phase and sentencing phase of a trial. !oad, B?C S.7. d at ?@FH@1G State v. )elson, @@ S.7. d >1@, > 1 +$enn.1BCB, (@) State v. )elson, @@ S.7. d >1@, > 1 +$enn.1BCB,. (C) See also $enn. Sup.%t. R. C, 0R @H1F1+1,+?,, which states that !(a) lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.! (B) %ounsels" decision to remain on petitioner"s case was in accordance with E% @HA, which permits counsel to continue representation !even though the client has elected to pursue a course of conduct contrary to the advice of the lawyer,! provided the lawyer does not assist in illegal conduct or assert a frivolous legal position. $enn. Sup.%t. R. C, E% @HA. (1F) 8ther #urisdictions have adopted similar procedures. See *oon v. D%gger, -1B So. d >-, AF +9la.1BB?,G Wallace v. State, CB? 4. d AF>, A1 H1? +8kla.%rim.1pp.1BBA,, cert. denied A1- ..S. CCC, 11- S.%t. ? , 1?? 5.Ed. d 1-F +1BBA,.

WHEN THE CLIENT GOES ROGUE

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