Defense Attorney Discretion to Ration Services and Shortchange Some Clients
Popular understanding, drawn from case law, is that the discretion exercised by prosecutors and defense attorneys is, in key respects, very different. Lawyers in any sector of practice have substantial discretion in pursuing clients' goals. That is a large part of what it means to be a professional-to take on a client's task but to largely control the route to achieving it. Hence both prosecutors and defenders have comparable leeway to make strategic decisions about matters including case theory, selection of witnesses and other evidence sources, and challenges to jurors. But prosecutors, in the conventional story, have an additional realm of discretion in which they decide which cases to pursue and which to invest substantial effort and resources. To allocate limited budgets across the full range of prosecutable crimes, they pick and choose prosecutions and vary the level of commitment among chosen prosecutions. In contrast, once defense attorneys accept cases, they pursue each one zealously. Discretionary judgment affects only choices about which strategy most effectively serves the client's goals of acquittal or minimal punishment.
The reality is that defenders' discretion about the level of commitment to give each case-call it case commitment-is much more similar to prosecutors' than it is different. Defenders cannot choose to forgo a case completely in the way that prosecutors can choose not to prosecute a crime, but they can come close. More to the point, they must, and commonly do, vary their level of representation among cases toward two ends (the second mandated by the first): allocating extremely limited defense budgets and giving priority to some clients in the most important cases. I want to suggest that this practice is problematic-not because it occurs, but because lawyers largely deny it occurs and as a consequence do it poorly.