It's clear that clients are not going to be successful on appeal with a claim of ineffective assistance of counsel when an attorney doesn't do his job for whatever reason. The best thing to do, then, is to avoid these problems altogether. Clients and attorneys are bound to have problems in the capital arena where the stakes are high and the issues are complex. You can never completely avoid a claim of ineffective assistance in these cases and if these claims bother you you're better off in another line of work. Nevertheless, attorneys can take steps to minimize the possibility that a client will feel they have been ignored or that the attorney has been ineffective when disputes over decision making arise. These same actions will also go a long way toward avoiding a sentence of death.

    Keeping a client informed on the progress of his case is very important. Copies of most correspondence, pleadings and case documents should be sent to the client. I say "most" instead of "all" because there are exceptions to every rule. In almost all criminal cases, snitches are interested in helping themselves at the expense of your client. Some things are not meant to be seen by anyone other than your client and a jail is not a private place. An enterprising snitch can get a lot of mileage out of seemingly benign documents. In addition to would be snitches, it's not unheard of for the police or correction officers to seize articles that are in your client's possession in jail - even if clearly marked as confidential attorney/client information. While a court may determine at a later time that some articles are protected by the privilege, the cat may already be out of the bag. It is also essential for an attorney to cultivate his client's trust as much as possible. An attorney and client cannot effectively work together without some trust in the relationship. Developing a relationship lets the client know that you have his best interests at heart. Once he knows this, fewer conflicts about who "controls" the case are likely to arise. Communicate often by mail. Visit your client just to see how he's doing or if he has any questions. Accept his phone calls. Contact his family. Often the client needs to feel like he has a choice - about anything. Wouldn't you? I'm not suggesting you present the client with decisions that clearly belong to the lawyer such as whether to move to suppress an item of evidence. It may help your client, however, to be at least tangentially involved in issues. Visit or call the client before motions are filed to let him know what they are for and what to expect. Ask his opinion and let him know you are interested in hearing it - the opinion may be based on flawed reasoning but the client needs to know he has been heard on issues that affect him.

    Regardless of the conflicts or problems that may arise between attorney and client one thing is certain in my mind: MITIGATION IS NOT AN OPTION. Look at the capital cases where ineffective assistance is an issue. These are cases where the client got the death penalty and the lawyer didn't do his job - usually because the client didn't want any mitigation evidence to be presented at sentencing and the lawyer acquiesced. Occasionally, but not often, you hear of people on death row who want to speed up the execution process. More often you see cases where the client should never have been put there in the first place. Before and during the trial your client is usually a basket case. Remember that your client is likely in trauma at this point in his life. He has been arrested, charged with capital murder, had his picture and name posted all over hell and half creation and been harassed by police - probably all within the last 12 hours. He is involved in a process that most lawyers and judges don't understand and you, a complete stranger, have asked him to spill his guts about what is probably the worst experience in his life. I'm sure he doesn't want you to call his mom to discuss his childhood or have a shrink in so that he can explain what a screw up he is to yet another person. He is probably ready to give up and wants to die right now - I probably would too. How will he feel 2 years or 2 months from now? That's what his lawyer needs to consider when addressing mitigation. After the trial it's too late for the client to change his mind.

Other matters are for the attorney to decide or reside in a grey area where there is no clear authority as to who makes the decision. The problems generally arise in these areas. When this happens, the lawyer should try to educate the client as to why the lawyer thinks a particular course of action is advisable. During this discussion, listen to the client. If the attorney has gained his client's trust and the client knows the attorney has his best interest at heart then either the two should be able to reach an agreement together or the client will accept the attorney=s advice.

Hopefully, you will have co counsel, a mitigation specialist or mental health expert who can help in talking with the client. If a resolution is not reached, the attorney must make the decision himself and document the conflict. Memories fade quickly, so write a memo to the file. Also, write a letter to the client and visit him to explain why you are pursuing your decided course of action.