At an Impasse Again

Twenty-five years ago the North Carolina Supreme Court departed from national standards on attorney-client decision-making and gave clients greater control over the direction of their case, including trial strategy and tactics. Since then, the North Carolina courts have sorted through various matters on which attorneys and clients have disagreed. A recent decision, State v. Ward (Nov. 1, 2016), applies and perhaps expands one of the exceptions to client control over the case. Background. The American Bar Association (ABA) standards state that “[c]ertain decisions relating to the conduct of the case are ultimately for the accused and others are ultimately for defense counsel.” ABA Standards for Criminal Justice: Prosecution and Defense Function, Standard 4-5.2(a) (3d ed. 1993). With the advice of counsel, the accused decides certain major matters, such as whether to accept a plea bargain, whether to waive a jury trial, and whether to testify. Strategic or tactical decisions—such as what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, and what trial motions to make—are defense counsel’s decisions, after consulting with the client. See ABA Standard 4-5.2(b). In State v. Ali, 329 N.C. 394 (1991), the North Carolina Supreme Court cited the ABA standards with approval but, based on its view that an attorney is the client’s agent, the court took the position that ultimately the attorney must carry out the client’s wishes. Although tactical decisions normally are for the attorney to make, “when counsel and a fully informed criminal defendant client reach an [...]