Lawyers' Confidential Plea Bargain Advice Subject to Scrutiny

April 14, 2012

scrutiny.jpgSeveral weeks ago, the U.S. Supreme Court decided two cases that could bring increased outside scrutiny on confidential lawyer/client plea-bargain colloquy. In Missouri v. Frye and Lafler v. Cooper, the Supreme Court held that the Sixth Amendment right to effective assistance of counsel applies to the plea bargaining process. Facially, this may not seem like too big a surprise, as we assume a lawyer's constitutional duty applies to each significant stage of the case, including pleas. By allowing habeas relief to this specific area, however, the concept could have interesting application on future day-to-day pleas and trials.

Factually, the cases differ. In Frye, the defense attorney failed to convey the prosecutor's plea offer to his client; not surprisingly, the Court held that counsel erred by not relaying a plea offer that could have resulted in a lesser sentence and/or a conviction of a lesser crime. In Cooper, the attorney conveyed the offer to his client, but was held to have erred by giving a constitutionally-defective assessment of the strength of the government's case. Even though both defendants were found guilty in jury trials, counsels' errors with respect to conveying and/or explaining plea offers were held to violate each defendant's Sixth Amendment right to effective assistance of counsel.

Interesting will be the effect these cases have on future cases. In at least one jurisdiction, the Department of Justice took an aggressive, affirmative step to protect convictions by filing a motion to ensure there are no Frye or Cooper violations. The government's motion sought to make a record of the defendant's "plea negotiation activity" in two ways:

  1. 1. Requiring defense counsel to publicly report the government's plea offer to the court in the presence of the prosecutor, and requiring the defendant to publicly acknowledge having rejected the offer (i.e., the government's attempt to address the Frye concern); and,
  2. 2. Requiring defense counsel to privately report to the court the details of the lawyer's confidential advice to his client concerning whether the defendant should accept or reject the plea offer (i.e., the government's attempt to address the Cooper concern).


Understanding that the government and courts could now be concerned that future cases not suffer Frye or Cooper problems, defense counsel should nevertheless be hesitant to readily accede to the above-described government remedies. Attorney Lawrence Goldman does a good job in the White Collar Crime Prof Blog (here and here) of describing how each of the government's requests poses significant problems. To prepare yourself for the possibility of a similar government motion being filed in your case, consider the following.

First and foremost, consider arguing that such a motion is an overreaction to the Frye and Cooper cases. Though Sixth Amendment claims have long been raised in habeas petitions, trial courts have resisted micro-analyzing whether defense lawyers have properly explained to their clients the details of what just happened and/or what is about to occur at each stage of litigation. For example, trial courts have resisted making inquiries of a defendant's decision whether or not to testify, or whether to file certain motions (including motions to suppress), or to call certain witnesses. Only in plea colloquies do courts inquire of defendants and their counsel whether the defendant and his counsel have sufficiently reviewed the charges, potential defenses, and plea agreement terms. To require a detailed reporting of an attorney's analysis and explanation of potential plea bargains would be a different, invasive step into a traditionally confidential and privileged arena. There is no compelling reason to not leave this to later habeas review as currently all other counsel/client issues are resolved. Under most circumstances, defense counsel should object to the government's suggestion otherwise.

Should the court entertain a government's "Frye" motion (i.e., open disclosure of the details of each plea offer and the defendant's public acknowledgement of his rejection of the offer), there is an alternative to the government's proposal. As noted by Goldman, open, public disclosure could lead to attorney posturing, affect the severity of offers, put inappropriate material before the court, and possibly impact a judge's perception of the defendant and/or strength of each side's case. In short, there are numerous bad consequences to a colloquy with the court about rejected plea offers.

An alternative option is to request the court to require the prosecutor to outline the plea offer in a written statement, provide it to defense counsel, require that the defendant sign the statement (acknowledging his receipt of the offer, his consultation with counsel, and his rejection of the offer), and return it to the prosecutor for safekeeping in the event it becomes an issue later. Because the court is traditionally removed from plea bargaining (see Fed.R.Crim.P. 11(c)(1)), it does not need to see the statement nor be told the details of the plea offer. By ensuring that the prosecution has received the statement signed by the defendant and his counsel, the trial court can be satisfied that the signed acknowledgement will be available later to protect against a claim that the defendant was not advised of the plea offer.

The "Cooper" issue is much more problematic. As noted above, the government recently sought an order from a trial court requiring the defendant to submit a detailed report to the court of the defense lawyer's confidential advice to his client on whether to accept/reject the government's plea bargain offer. As Goldman notes, this raises significant problems.

There are many different reasons a defendant chooses to reject a plea offer, and in some cases, privacy about those reasons is a paramount concern to the defendant and his counsel. Regardless of whether the government suggests that counsel's report be sealed and delivered ex parte to the court, in some cases disclosure of the details of the attorney/client discussion to the court would necessarily reveal defense trial strategy that could influence the court in later rulings and/or reveal other aspects of the defendant's situation and life that should remain confidential. The court may conclude that the defendant's rejection of the offer in the face of strong, compelling advice to plead guilty reflects reckless judgment on the part of the defendant, possibly impacting the trial and sentencing should the defendant be found guilty. Or, counsel may be hesitant to reveal in his report to the court (and thereby not share with his client) his candid assessment of the particular judge, a legitimate factor in many plea discussions. Without some basis to suspect the attorney has committed malfeasance in his analysis of the pending case and the merit of the government's plea offer, attorney/client privileged communications should remain confidential.

Allowing increased scrutiny of plea bargain advice at the trial court level is not only likely to chill attorney/client discussions, but will proportionally increase erosion of the foundation of fairness and impartiality that our justice system is founded upon. The government's motion requiring disclosure is unnecessary, as defendants are not left without remedy. As evidenced by the Frye and Cooper cases, appellate courts are paying attention and are prepared to grant defendants relief for counsel's errors.