In 5-4 decisions, the U.S. Supreme Court today decided there is a right to effective assistance of counseling in plea bargaining in the cases of Lafler v. Cooper and Missouri v. Frye.

In Lafler, the defendant rejected the plea offer due to bad advice by his lawyer, who told the defendant that he could not be convicted of attempted murder because “the victim was shot below the waist.” The defendant was convicted of attempted murder. In Frye, the defendant’s lawyer failed to tell him about plea offers, including a misdemeanor offer, and the offers expired.

The Supreme Court held that the right to effective assistance of counsel applies in both situations. The Court recognized the reality that 94-96% of all criminal cases are resolved through guilty pleas and therefore “defense counsel must meet responsibilities in the plea bargaining process to render the adequate assistance of counsel that the Sixth Amendment requires at critical stages of the criminal process.”

For the full text of the decisions see: http://www.supremecourt.gov/opinions/11pdf/10-444.pdf and http://www.supremecourt.gov/opinions/11pdf/10-209.pdf .

The NY Times reported on Justice Scalia’s apparently unusual move of reading his dissent from the bench and the concern that these cases will lead defendants to “flood” the courts with appeals about their plea bargains. See http://www.nytimes.com/aponline/2012/03/21/us/politics/ap-us-supreme-court-plea-bargains-.html?_r=1&hp

Given that most plea offers are accepted without contention, and that relatively few defendants reject offers and proceed to trial, as Mr. Lafler did, it seems unlikely that appellate courts will suffer from huge caseload increases.

Another simple reason why there may be so few of these appeals is grounded in practice. Last night during my seminar on Advanced Issues in Criminal Justice I had the two wonderful guest speakers—from the Public Defender’s office in Dallas County and the District Attorney’s Office in Tarrant County. We were discussing plea bargaining and one of the topics was the challenge of defendants who reject good offers, and get much higher sentences post-trial. In Texas, if a plea deal is rejected, it is apparently common practice for the defense lawyer to take their client on Voir Dire, in court and on the record, to establish what the offer was, that the defendant was fully advised about his options, including the maximum sentence, and that he is choosing to go to trial. This simple process closes off subsequent appeals (and complaints to the State Bar).

In California, I relied on fully documenting my file and made sure I had notes about my conversations with my clients, the offers, my advice, and what the client said in response (preferably with direct quotes). But, whether it is on the record, or internal documentation, good and competent defense lawyers will document the fact that they informed their clients of any and all offers and what their advice was regarding the applicable law. It seems unlikely that defense lawyers around the country are not taking these same basic steps to protect against incompetent assistance of counsel claims and state bar complaints and that there is a huge pool of cases just waiting to file appeals on these issues.

But, there will surely be cases brought up on appeal from defendants who had less then competent assistance of counsel at this key stage, which for most defendants is the end stage of their criminal case. It will be interesting to see how these cases further define a process that has until now been largely informal and not bound or restricted by many formal rules.