The right to counsel in criminal plea negotiations

As you may know, the Sixth Amendment grants those who are accused of a crime the right to the assistance of counsel for their defense. Courts have interpreted this to mean that not only must counsel be present, but that they must also be effective. To be effective assistance, the actions of the attorney must conform to the reasonable expectation of the legal community. After a Supreme Court decision in 1984, courts began regularly looking to the American Bar Association standards to determine what is reasonable in the eyes of the legal community.

Courts had not always provided a great deal of guidance as to what constituted effective assistance during plea negotiations. The Supreme Court had only indicated that an attorney should advise the client of the “direct” consequences of a plea agreement. Of course, there are many significant collateral consequences of a guilty plea beyond the actual sentence. Last year the Supreme Court made clear that effective assistance of counsel includes a warning about these indirect consequences during plea negotiations.

This started with a concern that it would not be effective assistance if counsel failed to inform a client that accepting a plea agreement would lead to deportation. But there seems to be little reason why it would be reasonable to inform a defendant of one type of collateral consequence and not others that may be equally serious.

Because the court often refers to the ABA standards to determine what can reasonably be considered effective representation, those standards can be very influential. These standards are created through a multi-step process that includes input from prosecutors, defense attorneys and others. The participation of defense counsel is crucial as they are actually representing criminal defendants, and they are well positioned to define what constitutes effective representation.

Only criminal defendants themselves can decide whether or not to accept a plea agreement. But it is the role of the defense counsel to fully explain all of the alternatives and the potential repercussions so that a defendant can make an informed decision that is truly in their best interest.

Source: Fordham Urban Law Review, Vol. 38, 2011, “Evolving Standards of Reasonableness: The ABA Standards and the Right to Counsel in Plea Negotiations” Margaret Love, Sept. 5, 2011