Lafler and Frye: A New Constitutional Standard for Negotiation

14 Cardozo Journal of Conflict Resolution 309 (2013)

30 Pages Posted: 21 Mar 2013 Last revised: 16 Jun 2015

See all articles by Rishi Batra

Rishi Batra

Texas Tech University School of Law

Date Written: March 20, 2013


In a pair of decisions handed down in 2012, Lafler v. Cooper and Missouri v. Frye, the Supreme Court extended the Sixth Amendment right to effective assistance of counsel to cover ineffective assistance by defense counsel solely in the plea-bargaining phase. Recognizing that pleas account for ninety-five percent of all criminal convictions, the court stated that “defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires.” This paper explores the implications of this new constitutional minimum standard for counsel in the plea bargaining context.

The paper examines the Frye and Lafler decisions in light of the Supreme Court’s previous rulings, and shows that the Court made broad rulings that extend ineffective assistance jurisprudence to the larger negotiation context of plea bargains. It then looks to existing standards of professional practice, such as ABA standards, case law, and negotiation texts, to find guidance for lower courts in determining how ineffective assistance may be shown in the negotiation of plea bargains. Most importantly, it looks at new types of claims that defendants may bring that may now be considered ineffective assistance: (1) poor preparation, (2) trading off the interests of one client for another, (3) taking no time for a plea bargain negotiation, (4) antagonizing the prosecutor, and (5) refusing to bargain. For each of these we attempt to apply existing standards to consider whether a court could uphold an ineffectiveness claim based on poor attorney performance. It ends by examining other hurdles that petitioners will have to face in bringing these claims, and offering suggestions for future scholarly work.

Keywords: plea bargaining, bargaining, negotiation, sixth amendment, 6th amendment, defense counsel, ineffective assistance, ineffective assistance of counsel, right to counsel

Suggested Citation

Batra, Rishi, Lafler and Frye: A New Constitutional Standard for Negotiation (March 20, 2013). 14 Cardozo Journal of Conflict Resolution 309 (2013). Available at SSRN:

Rishi Batra (Contact Author)

Texas Tech University School of Law ( email )

1802 Hartford
Lubbock, TX 79409
United States

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