Formal Ethics Opinion 84-F-73 was issued by the Board of Professional Responsibility on June 13, 1984, arising out of a criminal case wherein the defendant was charged with first degree murder. The defendant objected to any efforts or actions by appointed defense counsel in his behalf against the imposition of the death penalty in the event that a guilty verdict was returned in the guilt phase of the trial and instructed appointed defense counsel to neither investigate nor present mitigating evidence in the penalty phase of the trial. The defendant was adjudged competent to stand trial. The appointed counsel sought guidance from the Board of Professional Responsibility prior to trial regarding their ethical responsibilities. The advice given resulted in Formal Ethics Opinion 84-F-73, in part, as follows:
Counsel should fully inform the accused of his legal right to conduct a defense of his choice as guaranteed by the Constitution. The accused should be fully advised by counsel that his rights and interests are in conflict with counsel’s moral beliefs and ethical responsibilities. In 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. The consequences of this action should be fully explained to the accused. The court should be fully informed of the conflicts between counsel and the accused. Counsel should seek an adjudication that the accused is competent to represent himself during the voir dire examination of prospective jurors and the penalty stages of the trial or any other portion of the trial where the conflict is imminent. Counsel should move the court to withdraw from representation during the portion of the trial where the conflict is manifested. In the event the court fails to grant such motions, the attorney should seek an immediate review by the appellate court.
Appointed counsel did not withdraw from further representation of the defendant, as advised by the Board, but proceeded to represent the defendant in all phases of the trial. The defendant was found guilty of first degree murder in the guilt phase. Pursuant to the defendant’s instructions, appointed counsel did not present any mitigating evidence in the penalty phase. Appointed counsel did not advise the court of the defendant’s instructions. The death penalty was imposed.
The Supreme Court of Tennessee considered Formal Ethics Opinion 84-F-73 in Zagorski v. State, 1998 Lexis 717 (12-7-98), (Tenn. 1998), on appeal of the denial of the defendant’s petition for post-conviction relief. The court held that no grounds existed, pursuant to DR 2-110(b), which required mandatory withdrawal of the appointed defense counsel. The court noted that the defendant had never expressed a desire to discharge his appointed counsel, that 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 Disciplinary Rule and that even if counsel had sought to withdraw, such action would have required permission from the trial court. Tennessee Code Annotated, § 40-14-205 (1984); Tennessee Supreme Court Rule 8; DR 2-110(A)(1). The court stated:
We recognize the professional, personal, and moral conflicts that lawyers encounter when representing a defendant who chooses to forego the use of mitigating evidence. Nevertheless, 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 consequences involved.
In prospective cases, when a defendant, against his counsel’s advice, refuses to permit the investigation of mitigating evidence, counsel must inform the trial court of these circumstances on the record, outside the presence of the jury. The trial court must then take the following steps to protect the defendant’s interests and to preserve a complete record:
- Inform the defendant of his right to present mitigating evidence and make a determination on the record whether the defendant understands this right and the importance of presenting mitigating evidence in both the guilty phase and sentencing phase of trial;
- Inquire 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 circumstances; and
- After being assured the defendant understands the importance of mitigation, inquire of the defendant whether he or she desires to forego the presentation of mitigating evidence.
This procedure will insure that the accused has intelligently and voluntarily made a decision to forego mitigating evidence. Trial judges, however, shall not inquire of counsel as to the content of any known mitigating evidence. To hold otherwise would potentially force counsel to act against the client’s wishes and would risk the disclosure of privileged or confidential information.
Accordingly, when a defendant instructs defense counsel not to investigate or present mitigating evidence, defense counsel; 1) is not required to withdraw from further representation of the defendant in the absence of factors set forth in DR 2-110(B); 2) must otherwise advise the defendant as provided in Formal Opinion 84-F-73 quoted above; 3) must seek a determination regarding whether the defendant is competent to make a decision to forego such evidence; 4) must follow the procedure set forth in Zagorski, as quoted above; and 5) must not make known to the court or the prosecution the content of any known mitigating evidence. This revised opinion is intended to bring the Board’s former ethics opinion in conformity in all respects to the recent Zagorski ruling of the Supreme Court. Formal Opinion 84-F-73 is amended accordingly.
This 12th day of March, 1999.
Jack W. Robinson, Sr., Chair
McDonald Williams, Ph.D
Michelle A. Benjamin
Kim A. McMillan
APPROVED AND ADOPTED BY THE BOARD