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Safe and Effective Counsel in Criminal Plea Bargains

by Jay Reeves |

Has the U.S. Supreme Court carved out a new practice niche in criminal law – and a new set of risks to go along with it?

A pair of 5-4 rulings handed down in March would suggest as much.

In Lafler v. Cooper and Missouri v. Frye, the Supreme Court for the first time said there is a Sixth Amendment right to effective counsel in plea negotiations. This means that if defendants get lousy legal advice regarding a plea deal, they might be entitled to a “do-over” if their case turns out badly.

Which places more pressure on trial lawyers.

It was conceded in both cases that the defense lawyers did poor jobs. In Cooper, a defendant turned down a plea offer based on erroneous advice from his lawyer. He went on to be tried, convicted and sentenced to prison. In Frye, the lawyer failed to communicate a plea offer to his client, who then accepted a less favorable plea.

The state contended the lawyers’ performance should not matter because there is no constitutional right to effective counsel in plea bargains.

The high court disagreed.

“Criminal justice today is for the most part a system of pleas, not a system of trials,” Justice Anthony M. Kennedy wrote for the majority. “[T]he negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”

Statistics show that more than 90 percent of convictions in state and federal courts are the result of guilty pleas.

“The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining takes in securing convictions and determining sentences,” the court said.

Will the ruling mean heightened scrutiny of defense lawyers and more challenges to convictions? Justice Antonin Scalia apparently thinks so.

In an oral dissent from the bench, Justice Scalia blasted the decision as “absurd” and said it “opens a whole new boutique of constitutional jurisprudence” that he termed “plea-bargaining law.”

Kent Scheidegger of the Criminal Justice Legal Foundation called the rulings “stunning.” 

Robert Weisberg of Stanford Law School said the decisions reflected the court’s concern for the quality of legal representation in criminal law.

“It’s sort of saying to the world: Get real — most of the bad lawyering occurs in cases that involve plea bargaining because most cases involve plea bargaining,” Weisberg said in an interview on National Public Radio.

It will take time for the ramifications of Cooper and Frye to fully be known. For now, here are some risk management tips for criminal law attorneys:

* Know the law. The attorney error in Cooper was not knowing the elements of the charged crime. Don’t fall into the same trap. Do your legal research. Have a good grasp of the elements of the crime, lesser included offenses, and the like. Discuss these issues with your client. Associate experienced counsel if necessary, or refer the case out.

* Communicate. From the outset, talk to your clients about the criminal process. Let them know what to expect. Even before a plea is on the table, make sure they understand how the system works. Explain what a plea offer means. Explain the consequences of accepting the plea and the consequences of turning it down.

* Confirm the terms. Make sure you are clear on the specifics of the plea bargain, including how long the offer is viable.

* Be careful. In the rough and tumble of District Court, time is often a scarce commodity. But if you feel pressured and stressed, how do you think your client is feeling? Don’t rush recklessly into accepting or rejecting a plea. Request time to mull it over – during lunch, at least. Discuss the pros and cons with your client.

* Document your file. Get a copy of plea transcripts. Make a memo to your file of the date and details of plea discussions. Keep an activity log showing what happened and when.

* Obtain informed consent. Send letters to your client confirming plea proposals. Make sure your client understands the terms of the plea. Consider having your client sign a plea acceptance form.

*Call Lawyers Mutual. As with any question or potential problem, call one of our claims attorneys. Our claims repair program is one of the most valuable benefits of your insurance coverage. Let us help you avoid a claim by getting us involved early.

* For further information: Pdf versions of the full-text opinions in Lafler v. Cooper and Missouri v. Frye can be found at:

Ernest (Jay) Reeves Jr. is an attorney licensed in North Carolina and South Carolina. He has practiced in both states and was Legal Editor at Lawyers Weekly and Risk Manager at Lawyers Mutual. He writes the Risk Man column of practice pointers and risk management tips. Contact jay.reeves@ymail.com or phone 919-619-2441.

About the Author

Jay Reeves

Jay Reeves practiced law in North Carolina and South Carolina. He was Legal Editor at Lawyers Weekly and Risk Manager at Lawyers Mutual. He is the author of The Most Powerful Attorney in the World, a collection of short stories from a law life well-lived, which as the seasons pass becomes less about law and liability and more about loss, love, longing, laughter and life's lasting luminescence.

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