By Judge Joan Shkane

MYTH: A lawyer can ignore the wishes of his client in a criminal case, and do what (s)he thinks is best for the client.
REALITY: This is a question unanswered yet by the US Supreme Court. A decision is expected in Spring, 2018. The case that brought the issue to the Court is from Louisiana. It is a criminal case wherein the jury convicted the Defendant of killing three people and sentenced him to death. During interviews and court proceedings, the Defendant’s experienced and well- regarded lawyer came to believe that his client was legally insane. He told his client that his case was unwinnable because of the strong evidence against him. The lawyer urged his client to plead guilty in exchange for life in prison rather than probable death. Nevertheless, and despite the lawyer’s strong and reasoned advice, the Defendant insisted on a trial. At trial, and over his client’s strong objection, the lawyer told the jury that the Defendant was guilty and should be spared death. It is not unusual for a lawyer to admit his client’s guilt. However, this is usually done with the client’s cooperation, and not over his objection. This is one of the most difficult questions to answer for a lawyer, who is the client’s servant. As long as the lawyer is not asked to do anything illegal or the client is declared incompetent, the lawyer has to take his orders from the client on the issue of admitting guilt. The issue is whether the lawyer must do the client’s bidding, even when it may cause the Defendant’s death, and the lawyer truly believes that the client is incompetent. The US Supreme Court will answer that question.

MYTH: The parties to a separation agreement before a divorce cannot bind each other forever on child issues.
REALITY: The issue arose when two parents made a written agreement that their children would be raised in a particular religion and attend a religious school. After a period of time the mother no longer believed in the principles of that religion, so the children were being taught one thing in school and another in the mother’s home. The fear was that the children would be seriously confused. The Court agreed that a court cannot enforce any religious observance on an adult individual. However, since both parents agreed on behalf of the children before the mother’s change in beliefs, the Court must enforce the agreement. It is not an issue of religious freedom, but of obligations under a contract. Therefore, the mother’s change in preference is for her alone, and not for the children. A contract is a contract as far as this issue goes. If the mother refuses to follow the agreement, then she may lose some custodial and visitation rights.

MYTH: The rule in a custody determination of what is “in the best interest” of a child is hard and fast and very clearly defined in the law.
REALITY: This formula is not defined in a statute. It comes to us from cases judges have decided. It is composed of many factors. Of course, the physical environment matters, so the court will look at basic needs like home, school, and community. The court will also look at more elusive factors like the capacity for each party to nurture and guide the child, the love and emotional ties between child and each party, each party’s involvement with the child before and after the separation, each party’s flexibility and parenting skills, hostility between parties, the ability of each party to ensure a positive relationship between the child and the other party, and the child’s wishes. A party can offer other and different factors to the court for consideration, such as religious upbringing.

Giving attention to legal myths is not wrong. It can be a starting point for developing an interest in the law. However, if legal issues are important in your life, for instance regarding custody of your children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths. This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.


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