This article reviews Colorado case law regarding how to proceed when a major conflict arises between lawyer and client in a criminal case over the presentation of the defense.
Consider the following questions: What does a criminal lawyer do when a serious conflict arises between the lawyer and the client over what defense to present at trial? Does the lawyer need to inform the trial court as to the specifics of a serious strategic conflict? How much can the lawyer reveal about that conflict and the reasons the lawyer has chosen a defense to which the client objects? Can the lawyer continue to function as trial counsel if his or her chosen defense is in direct conflict with the anticipated testimony of the client?
These compelling legal and ethical questions were the subject of the Colorado Supreme Court case of People v. Bergerud.1 Bergerud clarified that a criminal defendant has significant authority in choosing the defense that will be presented at trial. The Court held that a defense lawyer could not advance a theory of defense that effectively rendered the client’s anticipated testimony a “nullity.”2 Additionally, the Court determined that defense counsel had a duty to respond candidly to questions by the trial court in a situation where a defendant demanded new counsel and claimed that present counsel was violating his rights in the presentation of the defense.3
Read the entire article published in The Colorado Lawyer, January 2014 issue. The article explores the strategic issues raised by the Bergerud opinion. It also offers suggestions for criminal defense lawyers about how to proceed when the client and the lawyer have entirely different perspectives on how to advance the defense at trial.
1. People v. Bergerud, 223 P.3d 686 (Colo. 2010).
2. Id. at 702.
3. Id. at 703.