A lawyer’s duty to communicate plea offers

I had occasion recently  to brief this issue.   I’m not sure it arises all that often but for what it’s worth:

The United States Supreme Court has recognized that “the negotiation of a plea bargain is a critical phase of litigation for the purposes of the Sixth Amendment right to effective assistance of counsel.”  Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284 (2010). “When considering whether to plead guilty or proceed to trial, a defendant should be aware of the relevant circumstances and the likely consequences  of his decision so that he can make an intelligent choice.” United States v. Rivas-Lopez, 678 F.3d 353, 356-57 (5th Cir. 2012).

In the last few years, the United States Supreme Court held that the Sixth Amendment’s guarantee of effective assistance of counsel extends to advice with regard to pre-trial plea negotiations.  Missouri v. Frye,  132 S.Ct. 1399, 1408, 182 L. Ed. 2d 379 (2012);  Lafler v. Cooper, 132 S.Ct. 1376, 1387, 182 L. Ed. 2d 398 (2012).  First of all, this  means that plea offers must be communicated to the client.   Missouri v. Frye,  132 S.Ct. at 1408.   Additionally, the attorney must provide guidance and counsel with regard to the plea offer so that the defendant’s decision whether to accept or reject it is knowingly and intelligently made.  The fact that the defendant rejected an offer and went on to receive a fair trial does not matter.  “As explained in Frye, ‘the right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining plays in securing convictions and determining sentences.’”  Lafler,  132 S. Ct.  at 1388.   

The Mississippi Supreme Court recognized the right to effective assistance of counsel with regard to plea bargains when it granted a hearing on the issue of defense counsel’s alleged failure to communicate with the defendant prior to a plea colloquy.  Wilson v. State, 81 So. 3d 1067 (Miss. 2012). In Wilson, the defendant was charged with two counts of capital murder.   He accepted a plea offer but the judge refused to accept it when, during the plea colloquy, Wilson expressed dissatisfaction with his attorneys.  On post-conviction, the Mississippi Supreme Court noted that Wilson’s expression of dissatisfaction of his attorneys to communicate with him caused the trial court to reject his plea.  “The record and exhibits appear to show that counsel’s failure to communicate with the client affected the outcome of the plea process.  . . . .  We find this issue to have merit to the extent that Wilson is entitled to an evidentiary hearing in the circuit court.”  Wilson, 81 So. 3d at 1083.


I get calls from people who insist they were forced into a plea because their lawyer told them they’d get life or x number of years if they didn’t take it.  And my reaction is, yeah, that’s sort of what plea bargaining is all about.  On the other hand I get calls from people who wished they had taken the plea that was offered.  I often wish we had some “scared straight” type videos from these people.  As a lawyer all you can do is give them effective advice about the wisdom of taking the plea.  The advice has to be informed advice.  That is, the lawyer should do an investigation of the facts and know the law and advise accordingly regarding any plea offers.  It’s tricky though.  You could have a client in a case where you know the facts and law support a castle doctrine instruction but you can’t assume the court is going to give you one.

2 thoughts on “A lawyer’s duty to communicate plea offers

    • Thank you. I thought it was interesting. A lot of clients turn down great offers and there’s nothing you can do. You WANT to put a gun to their heads but I’m pretty sure that would be considered unethical.

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