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What Happens When Lawyers Fail to Tell Clients About Plea Offers?

The U.S. Supreme Court recently examined the Right to Counsel regarding guilty pleas, deciding two criminal cases in which clients may have suffered because of the ineffective and deficient performances of their lawyers.

Statistics clearly show that most criminal cases are resolved not by trials, but by negotiated pleas – in fact, 97 percent of federal con­victions and 94 percent of state convictions are the result of guilty pleas.  It is not uncommon in many courts for a prosecutor to offer a deal with reduced charges or a lesser sentence in order to inexpediently resolve a case in a fair way.  But what happens if the prosecutor tells the lawyer about a deal being offered, but the lawyer neglects to tell the client?

In the case of Missouri v Frye, No. 10-444 (3/21/2012)(https://www.supremecourt.gov/opinions/11pdf/10-444.pdf), the Court held that clients in criminal cases have a right to effective assistance of counsel during plea negotiations.  The client was charged with driving with a revoked license, as a felony because he had been convicted of the same offense three times before.  The prosecutor sent a letter to the client’s lawyer offering to resolve the case with a guilty plea to a misdemeanor and 90 days in jail instead of to the felony.  But the lawyer failed to tell the client about it.  The offer expired, and the client later accepted an open plea to a felony – never knowing about the earlier offer!  He was sentenced to three years in prison, and appealed.

The Court held that as a general rule, “defense counsel has the duty to communicate formal prosecution offers to accept a plea on terms and conditions that may be favorable to the accused.”  The question then becomes what, if any, prejudice to the client resulted from the breach of the duty. “To show prejudice where a plea offer has lapsed or been rejected because of counsel’s deficient performance, defendants must demon­strate a reasonable probability both that they would have accepted the more favorable plea offer had they been afforded effective assis­tance of counsel and that the plea would have been entered without the prosecution’s canceling it or the trial court’s refusing to accept it, if they had the authority to exercise that discretion under state law.”  In Mr. Frye’s case, there were unique factual questions as to whether the misdemeanor plea offer would have been withdrawn before he could have accepted it, but the conviction was vacated and the case was sent back for an examination of that issue.

Although the Court found that “plea bargains have become so central to today’s criminal jus­tice system that defense counsel must meet responsibilities” in the process to provide the adequate assistance of counsel required by the Sixth Amendment, Justice Scalia dissented essentially on the theory that since a defendant has no “right” to a plea bargain he can’t be prejudiced even if his lawyer incompetently fails to communicate it to him.

In the case of Lafler v Cooper, No. 10-209 (3/21/12)(https://www.supremecourt.gov/opinions/11pdf/10-209.pdf), the client was charged with more serious charges – assault with intent to murder and three other offenses.  He at first expressed a willingness to accept a plea bargain, but then turned it down and went to trial because his lawyer gave him bad advice regarding the evidence and erroneously told him that he’d win a trial.  He lost.  As a result of not accepting the plea and being convicted at trial, he received a minimum sentence 3½ times greater than he would have received under the plea.

On appeal, the parties agreed that counsel’s performance was deficient.  The question for the Court was how to apply the test of whether the client was prejudiced by it, where ineffective assistance resulted in a rejection of the plea offer and the client was convicted at trial.  The Court held that the prejudice test requires “a defendant to show a reasonable possibility that the outcome of the plea process would have been different with competent advice.”  The case was sent back for the plea to be re-offered and see what happens from there.  Justices Scalia and Alito filed dissenting opinions.

Obviously, being in the position of appealing a poor performance by your attorney is not where anyone would want to be. Every client deserves an attorney he or she can trust, and the relationship between attorney and client requires meaningful and ongoing communication.  We take our duty to our clients very, very seriously, as any experienced and reputable criminal defense counsel should.

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