To Plead or Not to Plead: Effective Assistance and Client-Centered Counseling
CUNY School of Law
Boston College Law Review, 1998
This article analyzes the role of defense counsel in the defendant's crucial decision whether to accept or reject a plea offer. There is a vast amount of literature and there are numerous appellate decisions relating to effective assistance of counsel at trial, yet the overwhelming majority of criminal cases are resolved by plea. For too long, the defense attorney's counseling obligations have been free from constitutional regulation and scholarly examination. The unacceptable result is that some attorneys offer their clients no advice on the critical plea decision, while others, at the opposite end of the spectrum, bring considerable pressure to bear.
This article criticizes the historical lack of attention to the constitutional dimensions of counseling, and analyzes salutary emerging trends in the federal courts of appeals, district courts, and state supreme courts. Specifically, the article argues against the laissez-faire approach to counseling countenanced by many scholars and courts, and concludes that defense counsel must advise clients whether to accept or reject a proffered plea, and attempt to persuade clients to accept his or her recommendation. The article also addresses the failure of most clinical legal educators and scholars to recognize the constitutional implications inherent when counseling defendants in criminal cases. Client-centered lawyering, a staple of clinical legal education, champions lawyer neutrality as an essential ingredient of client decisionmaking. The article argues that developing interpretations of the counseling requirements of constitutional effective assistance challenge the viability of traditional conceptions of client-centered counseling, and mandate that counsel, at a minimum, advise his or her client about the wisdom of accepting or rejecting a plea offer.
JEL Classification: K14Accepted Paper Series
Date posted: September 1, 1998
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