The Supreme Court’s decision in Lafler v. Cooper, 132 S. Ct. 1376 (2012), has resulted in an increase in “Lafler claims,” alleging ineffective assistance of counsel concerning plea negotiation. Lafler, and the companion case, Missouri v. Frye, 132 S. Ct. 1399 (2012), affirmed that defendants have a right to effective representation during plea bargaining, and that counsel has a duty to timely and effectively communicate all plea offers to the client.
Lafler permits a defendant to allege in post-judgment proceedings that his attorney failed to provide adequate representation concerning a plea offer by the prosecution. Defendants rejecting a pre-trial plea offer, and who get a longer sentence following conviction after trial, may file a Lafler claim. A successful Lafler claim will result in the judgment after trial being vacated, and the defendant being permitted to plead guilty pursuant to a previously made plea offer. Lafler claims are being made with increasing frequency in federal and state post-judgment writ proceedings.
The Supreme Court in Lafler and Frye recognized the potential for an increase in post-judgment claims. The court in Frye set forth “some measures to help ensure against late, frivolous, or fabricated claims after a later, less advantageous plea offer has been accepted or after a trial leading to conviction with resulting harsh consequences.” One measure is that formal offers be made part of the record before trial. Other measures rely on a formalization of the plea negotiation process to place matters within the record.
Changes in Practice Due to Lafler and Frye
We are now starting to see changes in practice as a result of Lafler and Frye. In federal courts, some prosecutors have moved for the court to conduct a “no-plea colloquy,” and to engage in ex parte oversight of the plea process. A “no-plea colloquy” results in the court engaging in a discussion in open court in which defense counsel describes the offer received from the prosecution and the defendant confirms for the court that the offer was communicated and understood. A request for ex parte oversight would require the defense attorney to file a declaration under seal setting forth the plea offer, the advice given to the defendant, and the defendant’s position concerning the plea. Courts and defense counsel may resist these procedures on the ground that they improperly involve the court in plea negotiations, and intrude upon confidential client matters. The filing by the prosecution of a formal plea offer as part of the docket would obviate these concerns and help create a clear record of the offer made.
The Sacramento County District Attorney’s office has announced the adoption of a practice aimed at preventing unwarranted Lafler claims. Pursuant to this practice, a Deputy District Attorney will state the plea offer on the record in open court in the defendant’s presence when an offer is being rejected. The suggested language for this process is: “For the record, the offer is __. After [date / setting / court event], the offer will be revoked. The maximum exposure if convicted is ___.” Defense counsel should anticipate changes in practice similar to that used by the Sacramento District Attorney’s Office in other counties.
Defense Counsel’s Response to a Lafler Claim
Defense counsel facing a Lafler claim should be careful not to breach attorney-client confidentiality. While defense counsel may be frustrated or even angry to learn about a client’s Lafler claim, the client’s interests are of paramount concern.
Defense counsel should be aware of American Bar Association formal opinion 10-456, addressing the disclosure of information to prosecutors when the lawyer’s former client brings an ineffective assistance of counsel claim. The opinion concludes that disclosure of client confidences should be supervised by the court, and that the “self-defense” exception to attorney-client confidentiality does not permit defense counsel to reveal client confidences, ex parte, to the prosecutor. The opinion provides that “it is highly unlikely that a disclosure in response to a prosecution request, prior to a court-supervised response by way of testimony or otherwise, will be justifiable. It will be rare to confront circumstances where trial counsel can reasonably believe that such prior, ex parte disclosure, is necessary to respond to allegations against the lawyer.” Thus, defense counsel should be circumspect in responding to a prosecutor’s request for information about the communication of a plea bargain, or advice given concerning a plea offer. The appropriate response, in light of ABA opinion 10-456, would be to have the prosecutor obtain a court order regulating the scope of disclosure, or for counsel to testify at a proceeding supervised by a judicial officer. The client should be made aware of the potential for exposure of the confidences, and should be given an opportunity to object or withdraw the Lafler claim.