Ineffective Representation in Plea Bargains

People are often unhappy with their lawyers' performance, particularly when it comes to plea bargaining. Learn about making an argument that your lawyer's failures got you a bad outcome.

By , J.D. · UC Berkeley School of Law

Most criminal cases are resolved by a defendant pleading guilty; very few actually go to trial. The plea bargaining process can be a daunting one, and there are times when a defendant can feel rushed or pushed into pleading guilty. It's extremely frustrating for a defendant whose lawyer doesn't do a good job explaining the process or the terms of a deal. But whether you can do anything about your lawyer's not-so-great representation depends on the circumstances.

For information beyond this article on getting out of a plea, read about withdrawing a guilty plea. For information on appealing after pleading guilty, including ineffective assistance of counsel that costs the defendant a chance to appeal, read about conditional pleas.

Attorney Duties at the Plea Bargaining Stage

A defense attorney has several functions at the plea bargaining stage. Number one is making sure that a client understands and is informed about everything that is going on in the case. An attorney should always explain each aspect of the case, including:

  • the strengths and weaknesses of the case
  • the probable outcome of a trial
  • the terms of the offer, and
  • the possible sentences.

An attorney should also advise a client whether or not to plead by explaining the risks and benefits of going to trial. A defense attorney should help a client reach a strategic decision by analyzing the strength of the case. If the evidence against a client is strong and conviction at trial is likely, then the attorney has a duty to negotiate a plea bargain, unless the client insists on going to trial. (And the lawyer can't admit the client's guilt at trial against the client's wishes.)

For example, let's say Robert is facing criminal charges for identity theft. The evidence against him is pretty strong and the penalties are stiff. Robert isn't likely to prevail at trial and his attorney has negotiated a plea bargain with the prosecutor for a plea to a lesser charge and probation. If Robert were to go to trial and be convicted, he would probably face incarceration. In this scenario, the attorney would normally advise Robert to take the plea bargain. However, the ultimate decision would be Robert's.

A Bum Deal: Overcoming a Lawyer's Bad Job

The Sixth Amendment guarantees the right to an attorney for anyone faced with criminal prosecution. The Supreme Court has said that this means criminal defendants are entitled to effective representation during the plea bargaining stage. If an attorney doesn't adequately advise or explain everything to a client, or fails to negotiate a plea bargain on the client's behalf, then the client might have a viable claim for ineffective assistance of counsel.

But arguing that you had ineffective assistance of counsel after you have pleaded guilty is a difficult task. You generally have to prove that:

  • your lawyer did a terrible job, and
  • the terrible job made a difference in the outcome of your case.

If you make an informed decision to go to trial, it might not matter that you had the worst lawyer in the world. If that lawyer was sleeping all the time or drunk during court, but your case was so weak that you would have been convicted anyway, an ineffective assistance claim won't overturn your conviction.

But if you rejected a plea deal that you didn't understand because your lawyer didn't fully advise you about it, you may be able to successfully claim ineffective assistance of counsel. Situations where courts have found that there was inadequate representation at the plea bargaining stage include:

  • no negotiation at all on behalf of a defendant
  • failure to convey unbiased, complete, or correct information, and
  • understating or overstating risks in order to pressure a defendant either to go to trial or plead.

A Tough Argument

Courts are wary of undermining the criminal process—it would be problematic if every time defendants didn't like their lawyer or weren't happy with the outcome, they could successfully claim ineffective assistance of counsel. Generally, to win a claim of ineffective assistance, the lawyer's performance has to be pretty egregious.

But sometimes appellate courts determine that there was ineffective assistance during the plea bargain stage, and that the ineffective assistance changed the outcome of the case. In these instances, an appellate court will overturn the conviction, effectively taking the case back to square one.

The exact laws and procedures that apply to a case depend on the court system the case is in. If you want to know whether you can unwind a plea, consult an experienced attorney (not one whose poor representation contributed to your current situation).

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