The Supreme Court published opinions in two important cases this week, LAFLER v. COOPER and MARTINEZ v. RYAN. The cases recognize two obligations that attorneys owe their clients: (1) the right to effective counsel during plea bargaining and (2) a procedural remedy, if not a recognized right, during post-conviction challenges. Both cases set forth the minimum standards of constitutional protections to be afforded individuals during either the plea process or in some situations upon collateral post-conviction.
In Lafler an attorney's bad advice led a client to reject a prosecutor's plea offer, resulting in a harsher sentence after trial. Noteworthy about this case is the Court's expansion of the right to competent counsel to the plea bargaining process. Previously, there was no specifically recognized right to plea bargaining or to a competent lawyer at that point:
“as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” “Because ours ‘is for the most part a system of pleas, not a system of trials,’” Justice Kennedy reasoned, “the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”
In Martinez, the Court recognized the process--without going so far as recognizing the right--of people convicted in state court to effective assistance of counsel in collateral state post-conviction proceedings. Historically there is a well recognized right to effective counsel in direct appeals. However, there is no established right to competent counsel for collateral review of a conviction.
Justice Kennedy, without saying that a person has a right to effective counsel for these proceedings, nonetheless found that there is a procedure by which an individual can seek federal review of a constitutional claim if the person was denied that opportunity in state court because of attorney ineffectiveness:
"when a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of an ineffective-assistance claim in two circumstances. The first is where the state courts did not appoint counsel in the initial-review collateral proceeding for a claim of ineffective assistance at trial. The second is where appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington."
Both opinions produced critical dissents from Justice Scalia, and through those he writes that these opinions will open floodgates of litigation for both the newly recognized procedure in post-conviction proceedings and the right to effective counsel during plea negotiations.
Practically speaking where over 90% of criminal cases are resolved by pleas rather than trials, these decisions will have a significant impact in the day-to-day practice of law. While previously it was ethically required only for attorneys to relate plea offers to defendants, it is now a basic minimum requirement. For most lawyers this is a small but important safeguard in our system of justice.