Plea Bargaining Analysis and Defense Attorney Recommendations

Plea Bargaining Negotiation:
Analysis of the Plea Bargain Forces and
Recommendations for Defense Attorneys.
Rolando de la Garza1
Special thanks to Yasmin Love2
Table of contents
1 J.D Candidate, Texas A&M School of Law.
2 Yasmin Love: Editor in Chief. Bachelor of Arts in English, Wayne State University, Educator Dallas
ISD (2013-1014)

Plea Bargaining 2014
1
I. Introduction
II. What is Plea Bargaining:
A. History of Plea Bargaining
B. Extent and Nature of the Plea Bargaining process
under current American Criminal Justice System.
C. Contract View of the Plea Bargaining Process.
III. The Prosecutor’s Role:
A. Background and Context under which Prosecutors
Operate.
B. The Prosecutor’s Side of the Negotiation Table
a. Applicable Texas Disciplinary Rules of Professional Conduct
b. Duty to do Justice
c. Duty to inform of Exculpatory Evidence
d. Representative of the Sovereign/Bargaining Power
e. Qualities of a good Prosecutor
IV. The Defense Attorney’s Role
A. Background and Context under which Defense
Attorneys Operate
B. The Defense Attorneys Side of the Negotiation Table
a. Applicable Texas Disciplinary Rules of Professional Conduct
b. Client’s Right to Effective Council in Plea Negotiation
c. Breaking Down “Effective Council”
1. Duty to provide competent and diligent representation.
2. Duty to Communicate
3. Duty to Protect Confidential Information
4. - Duty to Practice under Local Professional norms
 .- Duty to Investigate
 .- Duty to Bargain
 .- Duty to Avoid Collateral Adverse Consequences
V. Recommendations for Defense Attorneys
A. Taking Account of All the Forces at Play
B. Checklist of the Defense Attorney
C. General Negotiations Techniques
VI. Conclusion

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I. Introduction
The essay brings together research from the legal industry in order to make a
coherent overview of the plea bargaining negotiation. It assembles research, commentary,
and cases dealing with plea bargaining, prosecutors, and defense attorneys. After looking
at all the flanks of the plea bargaining, it advises defense attorneys on standard principles
to approach a plea bargain negotiation.
Plea Bargaining is the most important facet of most criminal proceedings. “That is
what plea bargaining is. It is not some adjunct to the criminal justice system; it is the
criminal justice system.”3
With this in mind, we turn to what goes on in the actual negotiation of the plea
bargaining. The major players, of course, are the prosecutor and the defense attorney. The
prosecutor, representing the sovereign, seeks to bring to justice those who have violated
the laws. The defense attorney, representing the defendant, ensures that all the legal
safeguards are followed, and that his client receives the best possible outcome.
The prosecutor side has advantages and disadvantages. A prosecutor has the
resources of the state and wields enormous discretion on the charges to bring.4
On the
other hand, the prosecutor has affirmative duties to do justice and to turn over
exculpatory evidence.5
A prosecutor must also be very cautious to guard the legitimacy of
his office in order to protect the criminal justice institution, and his reputation.6
These
factors work well to balance the bargaining power during a negotiation.
Likewise, defense attorneys have pros and cons. On one side, the defense attorney
enjoys fewer resources. On the other, the defense attorney is often the only one to have
all the facts and is not restrained by a duty to do justice. Additionally, the defense
attorney's most important and only directive is the client’s protection. Meaning, that the
defense attorney is free to maneuver with only one goal in mind: to obtain the best
possible deal.
Thus, in a system where two competing forces must resolve an issue, the negotiation
is vital. This essay seeks to advise the defense attorney on how to approach the plea
bargaining negotiation. First, an overview of plea bargaining is presented. Then, the
prosecutors’ side is outlined. After, the defense attorneys’ side is explored. Finally, the
recommendations are set out.
3 Robert E. Scott William, Plea Bargaining As Contract, 101 Yale L.J. 1909, 1912 (1992)
4See Josh Bowers, Grassroots Plea Bargaining, 91 Marq. L. Rev. 85 (2007)
5 See Bruce A. Green, Why Should Prosecutors "Seek Justice"?, 26 Fordham Urb. L.J. 607 (1999); Texas
Disciplinary Rules of Professional Conduct
6 See Id. (Green makes the case that one major driving force for all prosecutors is the reputation of their
office. Prosecutors concern themselves with their reputation in the community in order to maintain
legitimacy)

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II. What is Plea Bargaining
Information is paramount in order to have an effective negotiation. As such, an
understanding of the plea bargaining process, its history, and legitimacy, is important. We
now turn to a brief overview of what plea bargaining is, and how it became such a widely
accepted process in the American justice system.
Black’s Law Dictionary defines plea bargaining as “[a] negotiated agreement between
a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser
offense or to one of multiple charges in exchange for some concession by the prosecutor
such as a more lenient sentence or a dismissal of the other charges.”7
“The defendant
relinquishes the right to go to trial (along with any chance of acquittal), while the
prosecutor gives up the entitlement to seek the highest sentence or pursue the most
serious charges possible”8
Additionally, there are other benefits the defendant can bargain
with, such as cooperation, commitment to community service, attending classes, etc.9
A. History of Plea Bargaining
Plea bargaining was not always a legitimate process. A brief overview of its
history will demonstrate how it became so, and why.
During the 1800s prosecutors were faced with anti-alcohol laws that spawned a
great deal of more prosecutions. “Massachusetts is the birthplace of probation which
closely linked to plea bargaining. Massachusetts was among those states that acted most
vigorously in the nineteenth century to suppress the sale of alcohol, and the enforcement
of liquor laws played a part in plea bargaining's early rise.”10
In other words, new
legislation saturated the courts, increasing the workload on judges, prosecutors and
defense attorneys. Plea Bargaining was a natural response to ease the flow of the
prosecution process.
Before the liquor laws, the judges had a great deal of discretion in the sentencing
of crimes.11
However, George Fisher summarizes that:
“the distinctive penalty scheme that the legislature
created for the liquor laws, which assigned a fixed fine to almost
every offense, deprived the judge of almost all sentencing
7 Black’s Law Dictionary 573 (4th Pocket ed. 2011) [hereinafter Black’s]
8 William, supra note 1, at 1909.
9 See Performance Guidelines for Criminal Defense Representation, The National Legal Aid and Defender
Association (May. 13, 2014),
http://www.nlada.org/Defender/Defender_Standards/Performance_Guidelines#sixone [hereinafter
NLADA Guidelines]
10 George Fisher, Plea Bargaining's Triumph, 109 Yale L.J. 857, 861 (2000)
11 Id.

4
discretion and put the prosecutor in a position to manipulate
sentences by manipulating charges. Similarly, in capital cases,
the prosecutor had the power to spare defendants mandatory
death by permitting them to plead guilty to a lesser charge.
Prosecutors quickly exploited these narrow grants of sentencing
authority and put in place a very modern practice of charge
bargaining for pleas.”12
Thus, the legal industry embraced the changes in order to make the entire process
easier on everyone involved.
Prosecutors had their own reason to accept and even embrace the plea bargaining
process.
“Prosecutors of the nineteenth century, like prosecutors
today, plea bargained to ease their crushing workloads, made
heavier in the nineteenth century both by their part-time status
and utter lack of staff and by a caseload explosion perhaps set off
by newly founded police forces and massive immigration. And
of course they plea bargained to avoid the risk that wanton juries
would spurn their painstakingly assembled cases.”13
That is to say, prosecutors found themselves overworked. Naturally, a process
that would ease the workload would have been embraced.
Defendants had a great incentive to plea bargain also. A defendant facing criminal
charges is in a precarious situation. On one hand, a trial may acquit and he could walk
free. On the other, a conviction would lead to a mandatory lengthy sentence. “It is not
hard to see why defendants, given the chance, would plead guilty for a measure of
leniency.”14
Another major change in the law allowed defendants to testify. This encouraged
defendants to plea bargain. Before the change, avoiding the stand could not be construed
against them, but now it could. Again, Professor Fisher points out that:
“Laws passed in Massachusetts and elsewhere that gave
defendants the right to testify at trial had the probably
unintended effect of discouraging defendants with criminal pasts
from going to trial. Seasoned criminals knew that if they took the
stand to claim their innocence, the prosecutor could impeach
their testimony with their old convictions and thereby destroy
any real chance of acquittal. Yet if they failed to testify,
12 Id. at 865.
13 Id.
14 Id. at 866

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defendants believed, juries would convict them for their silence.
Together with the growing practice of probation, defendant-
testimony laws confronted every defendant with a good reason to
plea bargain. Defendant-testimony laws helped to persuade
accomplished criminals to plead guilty, while the promise of
probation, which was available almost exclusively to first
offenders who pled guilty, served as an incentive for everyone
else.”15
Judges on their side also wanted the plea bargaining. Due to industrial
development, they saw an increase of civil litigation which increased their workload. 16
They too, embraced the streamlining that came with plea bargaining. Once more,
Professor Fisher:
”The industrial boom of the last part of the nineteenth
century and especially the spread of railroads and street cars
spawned a whole new strain of personal injury litigation that,
case for case, absorbed far more time than the contractual
nonpayment cases that once had filled the civil dockets. The
figures in Massachusetts are clear: As judges devoted a hugely
increasing proportion of their time to the civil caseload, they
devoted a shrinking proportion to the criminal caseload, and they
resolved more and more criminal cases by guilty plea. Judges
apparently discovered that they had more power to spur pleas in
criminal cases than to coerce settlements in civil cases. After all,
a criminal court judge could credibly promise a reward in
exchange for a plea or threaten a penalty for going to trial but in
civil court, the jury not the judge generally set the loser's
penalty.”17
Hence, judges, unable to slow the increase in civil cases, sought relief in the plea
bargaining process for criminal cases.
Ever since the beginning of the systematic plea bargaining in Massachusetts it has
spread throughout the country. Currently, it is used all over the U.S. and it sanctioned by
the Supreme Court. The Supreme Court has not only sanctioned it, but embraced it,
giving defendants a right of effective counsel during the plea bargaining negotiation.
With all this in mind, it is important for the defense attorney to realize that the
plea bargaining process is quite legitimate, and likely beyond contest. Consequently, a
defense attorney must play within the system, and not attempt to challenge the system
15 Id. at 866
16 Id.
17 Id. at 867.

6
itself. Plea bargaining is the main component of the criminal justice system. Therefore,
the defense attorney must be well versed in its nuances.
B. Extent and Nature of the Plea Bargaining process
under current American Criminal Justice System.
Plea bargaining settles about ninety one percent of all criminal cases.18
Therefore,
plea bargaining can be equated to the criminal justice system.
Plea Bargaining is used throughout the American Legal system. There are some
limitations to plea bargain, such as mandatory prosecution, Attorney General’s directives,
community demands, etc.19
But, these limitations are the exception that proves the rule.
C. Contract View of the Plea Bargaining Process
As mentioned before, most criminal prosecutions are settled without a trial.20
Due
to its prevalence, some theories on how to go about plea bargaining have emerged. One
such theory is the view of plea bargaining as a contract. The theory postulates that:
“[t]he parties to these settlements trade various risks and
entitlements: the defendant relinquishes the right to go to trial
(along with any chance of acquittal), while the prosecutor gives
up the entitlement to seek the highest sentence or pursue the
most serious charges possible. The resulting bargains differ
predictably from what would have happened had the same cases
been taken to trial. Defendants who bargain for a plea serve
lower sentences than those who do not. On the other hand,
everyone who pleads guilty is, by definition, convicted, while
substantial minorities of those who go to trial are acquitted.”21
It is important to comment on this theory view as it opens the door to the
possibilities of some challenges. For if plea bargaining is a contract, it may be challenged
as such. Contracts have elements that must be met in order to be valid, for example: offer
and acceptance, consideration, performance, etc. Challenges could include lack of any
18 Id.
19 For example, back in 2003 Attorney General John Ashcroft directed federal prosecutors to charge
defendants with the “most serious, provable offense” available and not to engage in plea bargaining.
Adam Liptak & Eric Lichtblau, New Plea Bargain Limits Could Swamp Courts, Experts Say, The New
York Times (Sept. 24, 2003), http://www.nytimes.com/2003/09/24/us/new-plea-bargain-limits-could-
swamp-courts-experts-say.html
20 See Fisher, supra note 8.
21 William, supra note 1, at 1909.

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element, equitable estoppel, duress, unconscionability, detrimental reliance, lack of
performance, breach, and the like.22
Defense attorneys should keep this mind. For such issues may arise and the
defense attorney could possibly challenge the bargain.
III. The Prosecutor’s Role
We now take a look at the prosecutors’ role in the bargaining process. This is
necessary to understand the forces at play on the prosecutorial side of the table.
Understanding what the prosecutor is going through is an important component for an
effective negotiation. 23
The prosecutor has the role of the seeker of justice. In every community the
prosecutor is the one responsible for bringing those duties of the law to justice.24
The
prosecutor wields enormous power but it is also subject to the scrutiny of the community.
25
That is to say that in order to protect the legitimacy of the prosecutors’ office, the
prosecutor must act with a great sense of responsibility.
A. Background and Context under which
Prosecutors Operate.
A prosecutor has a great deal of discretion on what charges to pursue if any at all.
As a result, the prosecutor has the ability to hark on some crimes that plague the
community which he serves, or tolerate crimes that are inconsequential. Additionally, the
prosecutor may tamper his pleas in an exchange for the communities’ tolerance of heavy
police enforcement. This interplay between the community and its prosecutor can be
called Grassroots Bargaining.26
Josh Bowers explains:
“Grassroots plea bargaining is a prosecutorial response
to certain communities' views on crime and enforcement. […]
By grassroots plea bargaining, I mean a systematic prosecutorial
reduction of plea prices - even in circumstances where
prosecutors find such reductions otherwise unwarranted - in
22 See generally UCC Art. II. Contract theories differ depending on jurisdiction, but it is something to
take into account when thinking about the plea bargaining process.
23 See Roger Fisher, William Ury & Bruce Patton, Getting To Yes: Negotiating Agreement Without
Giving In (rev. ed. 2011) (suggesting that one must take into account interests and emotions)
[hereinafter Getting to Yes]
24 It is well known that in American communities the prosecutor represents justice, and is the hand of
the law that brings criminals to justice. It is often seen in political races that the political leaders run
hand in hand with the prosecutors on a platform of tough on crime.
25 See Green, supra note 3.
26 See Bowers, supra note 2.

8
order to purchase communal acquiescence to enforcement
policies that otherwise lack public support.”27
“Grassroots plea bargaining goes hand-in-hand with
quality-of-life (or order-maintenance) policing. The citizens of
many poor minority communities harbor both deep crime fears
and animosity to aggressive enforcement. They want restoration
of public order, but not at the high costs of living under constant
police suspicion or losing children, friends, and neighbors to jail
cells. As police turn up enforcement pressure, prosecutors may
feel the need to pull back on the punishment throttle to ensure
that these communities accept - or at least tolerate - hard-nosed
police tactics.”28
“Prosecutors want to enable vigorous police
enforcement, but they concurrently wish to deflate communal
perceptions of illegitimacy and objections about unfair treatment.
So, prosecutors set low prices for public-order offenses in an
effort to have their cake and eat it too. This is grassroots plea
bargaining, and it becomes a genuine influence any time the
system attempts to strictly enforce "borderline" offenses against
members of communities that feature traditionally discordant
police-citizen relations. As police and prosecutors shift to zero
tolerance in their arrest and charging decisions, prosecutors
concurrently move toward greater tolerance in their plea-
bargaining decisions. In this way, grassroots plea bargaining is
just another instance of the oft-noted pattern that when the
system attempts to eliminate the exercise of discretion it merely
pushes that exercise to other points.”29
Consequently, the prosecutor is under heavy community scrutiny on his plea
bargaining. As prosecutors tamper their plea bargaining in order to gain good will from
the community to allow for police enforcement, the defense attorneys gain leverage in the
plea bargaining process.30
B. The Prosecutor’s Side of the Negotiation Table
27 Id. at 87.
28 Id.
29 Id. at 120.
30 The Grass Roots article makes a case that the interplay between he community and the prosecutor is
a real force. It does not, however, make any suggestion on how defense attorneys could take advantage
of this. Nonetheless, it is easy to see how such pressures on the prosecutor can give the defense attorney
one advantage on the negotiation.

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a. Applicable Texas Disciplinary Rules of Professional
Conduct (Professional Requirements)
In addition to community pressures, the prosecutor, like any other attorney, has many
professional responsibilities. These pressures are materialized through the professional
reputation, and the concern of admonition from the State Bar of Texas. These forces of
course, also play a role in the negotiation. Following are some of the most pertinent rules
applicable to Texas prosecutors. (See footnotes to note how rules work on the defense
attorney’s bargaining position)
Texas Disciplinary Rules of Professional Conduct31
Rule 3.03 Candor Toward the Tribunal32
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a
tribunal;
(2) fail to disclose a fact to a tribunal when disclosure is
necessary to avoid assisting a criminal or fraudulent act;
(3) in an ex parte proceeding, fail to disclose to the tribunal
an unprivileged fact which the lawyer reasonably believes
should be known by that entity for it to make an informed
decision;
(4) fail to disclose to the tribunal authority in the
controlling jurisdiction known to the lawyer to be directly
adverse to the position of the client and not disclosed by
opposing
counsel; or
(5) offer or use evidence that the lawyer knows to be false.
(b) If a lawyer has offered material evidence and comes to
know of its falsity, the lawyer shall make a good faith effort
to persuade the client to authorize the lawyer to correct or
withdraw the false evidence. If such efforts are
unsuccessful, the lawyer shall take reasonable remedial
measures, including disclosure of the true facts.
Rule 3.09 Special Responsibilities of a Prosecutor33
31 Texas Disciplinary Rules of Professional Conduct, State Bar of Texas (May. 13, 2014),
http://www.texasbar.com/AM/Template.cfm?Section=Grievance_Info_and_Ethics_Helpline&Templat
e=/CM/ContentDisplay.cfm&ContentFileID=96 [hereinafter Texas Disciplinary Rules]
32 Id. at 55. The candor towards the tribunal rule requires prosecutors to be forthcoming with any
relevant information. Including information about facts in the case, facts experts have relied on, and
controlling law. Additionally, the prosecutor must not offer false testimony, must not allow witnesses
to offer false testimony, and must alert the tribunal if he finds out about any past false testimony.
Since plea bargaining happens with some sort of court nvolvement, much of the information is ruled by
this candor toward the tribunal rule. This is important, as the defense attorney can rely on the
prosecutors duty to be forthcoming to the court.

10
The prosecutor in a criminal case shall:
(a) refrain from prosecuting or threatening to prosecute a
charge that the prosecutor knows is not supported by
probable cause;34
(b) refrain from conducting or assisting in a custodial
interrogation of an accused unless the prosecutor has made
reasonable efforts to be assured that the accused has been
advised of any right to, and the procedure for obtaining,
counsel and has been given reasonable opportunity to
obtain counsel;
(c) not initiate or encourage efforts to obtain from an
unrepresented accused a waiver of important pre-trial, trial
or post-trial rights;
(d) make timely disclosure to the defense of all evidence or
information known to the prosecutor that tends to negate
the guilt of the accused or mitigates the offense, and, in
connection with sentencing, disclose to the defense and to
the tribunal all unprivileged mitigating information known
to the prosecutor, except when the prosecutor is relieved of
this responsibility by a protective order of the tribunal;35
(e) exercise reasonable care to prevent persons employed or
controlled by the prosecutor in a criminal case from making
an extrajudicial statement that the prosecutor would be
prohibited
from making under Rule 3.07.
Rule 4.01 Truthfulness in Statements to Others36
In the course of representing a client a lawyer shall not
knowingly:
(a) make a false statement of material fact or law to a third
person;
Rule 4.02 Communication with One Represented by Counsel37
(a) In representing a client, a lawyer shall not communicate
or cause or encourage another to communicate about the
33 Id. at 68. The prosecutor is bound to not act without probable cause, to refrain from talking to the
accused or obtaining waivers, and to attempt to keep his office from making promises they can’t keep.
These requirements keep the prosecutor from puffing too much. A defense attorney may reasonably
rely on what the prosecutor says or promises.
34 This may also be construed as the duty to do justice, which is expanded below.
35 The duty to turn over exculpatory evidence is expanded below.
36 Id. at 70. The truthfulness to third parties means that even the defense attorney staff is entitled to
honesty from the prosecutor. Therefore, anyone from the defense attorney’s staff may communicate
with the prosecutor and expect the prosecutor to be truthful.
37Id. at 71. Once representation has begun, the prosecutor has an absolute directive not to
communicate with the client but trough the defense attorney. This is a great bargain tool, as one may
rely on the fact that the client cannot be coerce, convinced, or otherwise be made to take a deal.

11
subject of the representation with a person, organization or
entity of
government the lawyer knows to be represented by another
lawyer regarding that subject, unless the lawyer has the
consent of the other lawyer or is authorized by law to do so.
(c) For the purpose of this rule, organization or entity of
government includes: (1) those persons recently having a
managerial responsibility with an organization or entity of
government that relates to the subject of the representation,
or
(2) those persons presently employed by such organization
or entity and whose act or omission in connection with the
subject of
representation may make the organization or entity of
government vicariously liable for such act or omission.
(d) When a person, organization, or entity of government
that is represented by a lawyer in a matter seeks advice
regarding that matter from another lawyer, the second
lawyer is not prohibited by paragraph (a) from giving such
advice without notifying or seeking consent of the first
lawyer.
b. Duty to do Justice
Among the strongest guiding principles of any prosecutor is the duty to do justice. 38
This is the interest of the prosecutor as well as his boundaries. A prosecutor is not on a
vendetta of retribution. Instead, his function is to give justice to those offended. This is an
important fact, as doing justice is an interest and not a position. 39
Although the duty to do justice is well known in the legal industry, there is no single
place where it is codified. Instead, it stems from tradition, common law, and rules of
conduct. Professor Bruce A. Green, Fordham University School of Law, makes a great
summary of the duty to do justice in his article Why Should Prosecutors Seek Justice?:
“The literature of the legal profession refers to the
prosecutor's duty to "seek justice" or "do justice," a professional
ideal that analogizes prosecutors to judges and distinguishes
prosecutors from other lawyers. […] For this reason, while a
lawyer defending a man accused of a criminal offense should
"exert all his ability, learning, and ingenuity, in such a defense,
even if he should be perfectly assured in his own mind of the
38 See Green, supra note 3.
39See Getting To Yes.(making the case that in a successful negotiation the participants must focus on
interests)

12
actual guilt of the prisoner," a lawyer should never prosecute "a
man whom he knows or believes to be innocent.”40
“The prosecuting officer represents the public interest, which
can never be promoted by the conviction of the innocent. His
object, like that of the court, should be simply justice; and he has
no right to sacrifice this to any pride of professional success.
And however strong may be his belief of the prisoner's guilt, he
must remember that, though unfair means may happen to result
in doing justice to the prisoner in the particular case, yet, justice
so attained, is unjust and dangerous to the whole community.”41
Not only does the literature establish a duty to do justice. Embedded in common law
there are many doctrines of fair play. For example, due process requires notice and
opportunity to be heard.42
Another example is the ancestry of the courts of equity,
concerning themselves with fairness.43
This means that common law concerns itself with
fairness and that it would expect all of its officers, principally those with great power, to
act justly.
The Texas Disciplinary Rules also call for behavior that is fair and just.
Particularly, the rules that call for: honesty, candor, abstain from violating rights, and
turning over of exculpatory evidence.44
This is evidence that the rules call for a sense of
fair play. One can safely assume that this is a requirement for prosecutors to do justice.
The meaning of justice is another matter entirely. Black’s Law Dictionary defines
justice as “the fair and proper administration of law.”45
Accordingly, for a prosecutor to
comply with his duty to seek justice he must be fair and proper. Fair is defined by Black’s
Law Dictionary as impartial, disinterested and free of bias.46
Proper can be defined by the
rules which are set for the prosecutor to follow, may it be by the Texas Disciplinary
Rules of Professional Conduct, or by the local professional standards, and the adherence
to those rules. Therefore, for a prosecutor to comply with his requirement to seek justice
he must act disinterested and follow all the rules set upon him.
In the plea bargaining negotiation this duty is one the defense attorney should not
hesitate to rely on. Appeals to justice are generally a good idea in any negotiation.47
In
40 Green, supra note 3, at 613.
41 Id. at 613.
42 Black’s, supra note 5, at 253. (defining due process as including notice and the right to a fair hearing)
43 Id. at 272. (describing equitable as consistent with the principles of justice and right)
44 See generally The Texas Disciplinary Rules.
45 Black’s, supra note 5, at 426.
46 Id. at 299.
47 See Getting To Yes, supra note 21.

13
the plea bargaining however, appeals to justice rise from a mere suggestion, to an
obligation of the prosecutor, making them all the more effective.
c. Duty to inform of Exculpatory Evidence
The duty to turn over exculpatory evidence is one of the strongest retrains the
prosecutor has. The rule stems from the concept of justice, as well as the Texas
Disciplinary Rules of Professional Conduct. The rule covering the duty to hand over
exculpatory evidence is 3.09(d).
The rule states: The prosecutor shall.
(d) make timely disclosure to the defense of all evidence or
information known to the prosecutor that tends to negate
the guilt of the accused or mitigates the offense, and, in
connection with sentencing, disclose to the defense and to
the tribunal all unprivileged mitigating information known
to the prosecutor, except when the prosecutor is relieved of
this responsibility by a protective order of the tribunal.48
Jeffrey L. Kirchmeier, professor of law at the City University of New York School of
Law, explains the duty to turn over exculpatory evidence:
“When the powerful government, with all of its resources,
withholds helpful evidence from an individual defendant, it
creates an unfair trial and may rise to the level of a constitutional
violation. In the capital case of Brady v. Maryland, the United
States Supreme Court held that when a defendant requests
favorable evidence, a prosecutor's failure to turn over such
evidence violates the due process clause of the Fourteenth
Amendment. Later cases explain that even if the defendant does
not request such information, a prosecutor's failure to turn over
material exculpatory evidence violates due process. Further, in
capital cases, Brady applies to evidence that is material "either to
guilt or to punishment," and thus in capital cases Brady evidence
includes a broad range of mitigating evidence and other capital
sentencing phase evidence.”49
On the bargaining table, this is a powerful tool for the defense attorney. A defense
counsel is entitled to this information, which can potentially help the defendant’s
position. Unlike any other negotiation where parties have no duty to turn over
48 Texas Disciplinary Rules, supra note 29.
49 Jeffrey L. Kirchmeier, Vigilante Justice: Prosecutor Misconduct in Capital Cases, 55 Wayne L. Rev.
1327, 1335 (2009)

14
information, here the defense side can specifically request, and the prosecution would be
obligated to turn over beneficial information to the defendant.
d. Representative of the Sovereign / Bargaining Power
As many restraints as prosecutors have, they still wield enormous power in the plea
bargaining negotiation. After all, the prosecutor has little to lose, while the defense
attorney’s client may face depravation of property, liberty, and even life.
Wesley MacNeil Oliver, Associate Professor of Law and Criminal Justice Program
Director, Duquesne Law School, describes the power of the prosecutor as follows:
“The unchecked power of prosecutors to decide which
charges to bring and what plea to offer the defendant is
problematic for all the reasons that led to sentencing guidelines.
There is no reason to believe that prosecutors will be more
consistent in their exercise of discretion than judges. In fact,
there are several reasons to believe the contrary. A prosecutor
has never had to explain his decision to seek certain charges and
not others, or to offer or accept a plea bargain. Even in the
bygone era of extraordinary judicial discretion, the sentencing
hearing required an explanation of the judge's decision. There are
no transparency requirements for prosecutors and thus, unlike
judges, there is no system for routinely evaluating their
reasoning. Prosecutorial charging and plea bargaining decisions-
which can have a greater effect on a defendant's punishment than
any decision made by a judge-knows virtually no limits. The
late Professor William Stuntz has argued that the extraordinary
range of conduct criminalized by legislatures, combined with the
absence of any limitation on prosecutorial charging decisions,
has permitted prosecutors an unchecked power to determine who
shall be punished and how much.”50
He furthers states that the power of the prosecutors:
“can determine what charges to bring, what bargains to
offer, and what processes to use to determine both the
appropriate charge and the appropriate plea. As described above,
Lafler and Frye should encourage defense lawyers to
systematically develop their skills as negotiators and provide
judges an incentive to provide guidance on what the results of
these negotiations should look like.”51
50 Wesley MacNeil Oliver, Toward A Common Law of Plea Bargaining, 102 Ky. L.J. 1, 32 (2014)
51 Id. at 32.

15
This power the prosecutor has is perhaps the most worrisome advantage in the
negotiation the defense attorney has to field.
Like any other negotiation where there is a power differential, the defense attorney is
not without recourse. Oliver calls for defense lawyers to develop their negotiating skills.
Negotiation training and practice can help any attorney become an effective negotiator
who can handle the power differential. And let’s not forget the many pressures and
duties the prosecutors must answer to.
e. Qualities of a Good Prosecutor
Aware of the propensity for abuse by prosecutor, the legal literature illustrates some
of the qualities a good prosecutor should possess. Ross Galin, J.D. candidate Fordham
University School of Law, makes the case that:
“A sensitiveness to fair play and sportsmanship is perhaps
the best protection against the abuse of power, and the citizen's
safety lies in the prosecutor who tempers zeal with human
kindness, who seeks truth and not victims, who serves the law
and not factional purposes, and who approaches his task with
humility.”52
Melanie D. Wilson, Associate Professor at the University of Kansa School of Law,
adds:
“Prosecutors must evaluate their options from the viewpoint
of the various constituents they serve, while asking whether the
proposed course will promote the following ideals: 1) to convict
a guilty perpetrator of a federal crime; 2) to assist the states in
convicting persons who violate their criminal statutes; 3) to
ensure that every perpetrator receives adequate but not
disproportionate punishment; 4) to encourage cooperators to
provide only truthful information; 5) to promote and protect the
interests of victims, whether they are victims of federal or state
crimes, who need to heal and hope to live without fear of further
victimization; 6) to satisfy society's need for retribution; 7) to
satisfy society's need to deter crime--both by the individual
perpetrator and by other would-be criminals; and 8) to tailor each
defendant's sentence and punishment to his individual
52Ross Galin, Above the Law: The Prosecutor's Duty to Seek Justice and the Performance of Substantial
Assistance Agreements, 68 Fordham L. Rev. 1245, 1245 (2000)

16
culpability, likelihood of rehabilitation, and other individual
characteristics.”53
What this literature tells us is that there is a public expectation for prosecutors to be
fair minded, restrained officers of the court. It tells us that the community is aware of
their power and thus it expects responsibility and accountability from the prosecutor.
Although the community expects those culpable to be punished, the punishment must be
individually moderated. Thus, although the prosecutor may have discretion and power of
the charges, it is not unchecked or beyond scrutiny. Therefore, the defense attorney with
less power can still negotiate effectively.
IV. Defense Attorney’s Role in the
negotiation.
The defense attorney’s role in the negotiation is, of course, to obtain the best outcome
possible for the client. Unlike prosecutors, defense attorneys are not encumbered with
concerns of legitimacy, justice, information sharing with opposing counsel, or
community scrutiny. Neither do they conduct the plea bargain negotiation with only
conjectured facts, as they usually have the full story. On the other hand, they are subject
to the requirement of effective counsel. But the effective counsel requirement lines up
nicely with the defense attorney’s goal as it is a requirement of duty towards the client
and not the community or the prosecutor. Thus, the defense attorney is free to do
whatever is legally and ethically possible to get a good deal for the client.
A. Background and Context under which Defense
Attorneys Operate
Defense attorneys are not as accountable to the community as prosecutors are. It
is well known that defense lawyers, like most lawyers, do not enjoy a positive reputation
within the community. The defense lawyer, particularly, is often thought as someone
who defends criminal. Their reputation is that of a lawyer who cares of nothing but
letting criminals go free. However, as defense attorneys are not public officials (and
when they are, they are not in the public eye) their reputation primarily matters among
other professionals. That is to say, that defense attorneys need not respond to community
pressures but only to professional ones. Of course, defense attorneys often deal with the
same prosecutors, judges, and mediators. Thus, they must ensure to maintain a worthy
standing within this group.
53 Melanie D. Wilson, Prosecutors "Doing Justice" Through Osmosis-Reminders to Encourage A Culture of
Cooperation, 45 Am. Crim. L. Rev. 67, 99 (2008)

17
B. The Defense Attorneys Side of the Negotiation
Table
a. Freedom to zealously represent
As opposed to their counterparts, the prosecutors, defense attorneys are not usually
under public scrutiny. They do not have a constituency to answer to, are not public
officials, and do not have to answer to community needs. Hence, the defense attorney is
free to zealously represent.
This is a marked difference between the defense attorney and the prosecutor. It
translates into an advantage in the plea bargaining negotiation for the defense; as the
defense attorney can represent with zeal outside the public eye, while prosecutors have to
be in touch with the community’s needs.
Also, the defense attorney is laden with a duty to represent with zeal, while the
prosecutor in his quest for justice must remain detached. This means that during the
negotiation a defense attorney can go through great lengths to achieve his goals, while the
prosecutor must only seek what is just.
b. Knowledge of the Facts.
Prosecutors work on evidence and conjecture as to what happened in the underlying
matter. They use investigators, witnesses, labs, etc. As good as all this may be, it’s not as
good as having unfettered access to the story. On the flip side, defense attorneys have
access to the client and the client’s story. With some good rapport and corroboration the
defense attorney can get a picture on the underlying matte far better than the prosecutors’.
This knowledge renders a benefit on the negotiation table. The defense attorney
negotiates with all the facts in hand while the prosecutor only has an educated guess.
Certainly, the benefit diminishes as the prosecutor has more information and evidence to
back up his theory. Nevertheless, having all the facts is an advantage for the defense.
Information can be a valuable trading piece. The prosecutor may be willing to offer a
better deal in exchange for information regarding the case. Information the prosecutor
cannot get, prove, or surmise, while the defense has ample access to.
Finally, the professional rules of conduct call to protect the client’s information.54
This means that the defense attorney has the perfect tool in defending the information
from going public. Not only do defense attorneys get the entire story, they also get a rule
that justifies any concealment.

18
c. Applicable Texas Disciplinary Rules of Professional
Conduct (Professional Requirements)
The Texas Disciplinary Rules apply to defense attorneys on two different levels.
The rules apply directly as violation may result in sanctions from the Texas Bar.
Additionally, the rules apply to an attorney so that he may comply with the requirement
of the Supreme Court to provide effective council during the plea negotiation.
Rule 1.01 Competent and Diligent Representation55
(a) A lawyer shall not accept or continue employment in a
legal matter which the lawyer knows or should know is
beyond the lawyer’s competence, unless:
(1) another lawyer who is competent to handle the matter
is, with the prior informed consent of the client, associated
in the matter; or
(2) the advice or assistance of the lawyer is reasonably
required in an emergency and thelawyer limits the advice
and assistance to that which is reasonably necessary in the
circumstances.
(b) In representing a client, a lawyer shall not:
(1) neglect a legal matter entrusted to the lawyer; or
(2) frequently fail to carry out completely the obligations
that the lawyer owes to a clientor clients.
(c) As used in this Rule neglect signifies inattentiveness
involving a conscious disregard for the responsibilities
owed to a client or clients.
Rule 1.03 Communication56
(a) A lawyer shall keep a client reasonably informed about
the status of a matter and promptly comply with reasonable
requests for information.
(b) A lawyer shall explain a matter to the extent reasonably
necessary to permit the client to make informed decisions
regarding the representation.
Rule 1.05 Confidentiality of Information57
(a) Confidential information includes both privileged
information and unprivileged client information. Privileged
information refers to the information of a client protected
by the lawyer-client privilege of Rule 5.03 of the Texas
Rules of Evidence or of Rule 5.03 of the Texas Rules of
55 Id. (The competence requirement simply requires an attorney to know what his doing regarding the
cases he takes. If he is not competent, he must become competent or work with an attorney that is
competent.)
56 Id. at 12.(The communication requirement plays a major role with defense attorneys as they must
inform of any plea deal offers in order to comply with the effective council requirement).
57 Id. at 19.(The confidentiality requirement is a great tool for defense attorneys. This is an excellent
way to field and avoid giving up information to the prosecutor).

19
Criminal Evidence or by the principles of attorney-client
privilege governed by Rule 5.01 of the Federal Rules of
Evidence for United States Courts and Magistrates.
Unprivileged client information means all information
relating to a client or furnished by the client, other than
privileged information, acquired by the lawyer during the
course of or by reason of the representation of the client.
(b) Except as permitted by paragraphs (c) and (d), or as
required by paragraphs (e), and (f), a lawyer shall not
knowingly:
1) Reveal confidential information of a client or a former
client to:
(i) a person that the client has instructed is not to receive
the information; or
(ii) anyone else, other than the client, the client’s
representatives, or the members, associates, or employees
of the lawyer’s law firm.
2) Use confidential information of a client to the
disadvantage of the client unless the client consents after
consultations.
(3) Use confidential information of a former client to the
disadvantage of the former client after the representation is
concluded unless the former client consents after
consultation or the confidential information has become
generally known.
(4) Use privileged information of a client for the advantage
of the lawyer or of a third person, unless the client consents
after consultation.
Rule 3.03 Candor Toward the Tribunal58
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a
tribunal;
(2) fail to disclose a fact to a tribunal when disclosure is
necessary to avoid assisting a criminal or fraudulent act;
(3) in an ex parte proceeding, fail to disclose to the tribunal
an unprivileged fact which the lawyer reasonably believes
should be known by that entity for it to make an informed
decision;
(4) fail to disclose to the tribunal authority in the
controlling jurisdiction known to the lawyer to be directly
adverse to the position of the client and not disclosed by
opposing counsel; or
58 Id. at 55. (The candor toward the tribunal requirement is, of course, the same requirement every
lawyer has toward the court. This requirement is subject to the confidentiality requirement. Meaning,
that although a defense attorney must not be untruthful to the court, he musn’t turn over any
confidential information).

20
(5) offer or use evidence that the lawyer knows to be false.
(b) If a lawyer has offered material evidence and comes to
know of its falsity, the lawyer shall make a good faith effort
to persuade the client to authorize the lawyer to correct or
withdraw the false evidence. If such efforts are
unsuccessful, the lawyer shall take reasonable remedial
measures, including disclosure of the true facts.
(c) The duties stated in paragraphs (a) and (b) continue
until remedial legal measures are no longer reasonably
possible.
d. Client’s Right to Effective Council in Plea Negotiation
As described above, the plea bargaining process is established and a legitimate legal
procedure in the American Criminal Justice System. Additional support to the process
stems from the separation of the legal branches, as the courts are hesitant to intervene
with the executive represented by the prosecutor. Now that the process has taken roots,
we turn to the question of what a defendant is entitled during the process.
Unlike the right to avoid double jeopardy, right to counsel, or right to a jury, plea
bargaining is not mentioned anywhere in the constitution. Thus, the rights of the accused
arise from the right of due process. The following Supreme Court cases are pivotal in
giving the accused the rights to effective council during the plea bargaining negotiation.
Charged with a felony in Florida state court, Clarence Earl Gideon needed a lawyer
but could not afford one. At his original trial in 1961, Gideon tried his case pro se and
performed as any person unfamiliar with the law would. He lost his case and the jury
convicted him. The judge ultimately sentenced him to five years in prison. Following his
conviction, Gideon appealed on Sixth Amendment ground for the right to counsel. On his
appeal the court concluded that the right to counsel was fundamental and applicable to
the state through the Fourteenth Amendment, thus establishing the right to counsel in
state matters.59
In Missouri v. Frye, Galin Frye was arrested for driving with a revoked license. Prior
to his arrest Frye had been offered two plea bargains. However, his attorney failed to
inform him of the offers. The Supreme Court decided that Frye was entitled to effective
counsel during the plea negotiation and that the attorney failed to meet the effective
standard when he did not communicate the offers to his client.60
In Lafler v. Cooper, the defendant, accused of attempted murder, refused a plea
bargain of 51 to 85 months on the advice of counsel. The attorney advised that the
59 See Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, (U.S. 1963)
60 See Missouri v. Frye, 132 S. Ct. 1399, (U.S. 2012).

21
prosecution could not establish intent because he had shot the victim below the waist.
After trial, he was found guilty and received the mandatory minimum of 185 to 360
months. The court established that the bad advice of the attorney was deemed ineffective
representation. Hence, the case established that effective representation is necessary
during the plea bargaining negotiation.61
The Supreme Court gave yet another example of what ineffective counsel can be in
Padilla v. Kentucky, reinforcing the concept that effective council is necessary during
plea negotiation. In this case the defendant, a permanent resident, pleaded guilty to drug
charges on the erroneous advice that such charges would not affect his immigration
status. The court held that the advice was erroneous in that it did not consider substantial
collateral consequences.62
All these cases establish the concept of a Sixth Amendment duty of effective counsel
during the plea bargaining negotiation. And if the defendant has a right to effective
counsel during plea bargaining, then the counsel has a duty to bargain. Jenny Roberts,
Professor of Law at Washington College of Law., summarizes:
“In a criminal justice system dominated by plea bargaining,
this can also be interpreted to mean that defense counsel may be
required to actively pursue the client's goals through effective
negotiation, rather than to wait passively for offers from the
prosecution.” 63
e. Breaking Down Effective Counsel
We now turn our attention to what effective counsel means. The duties an attorney
must perform in order to be considered effective flow from several sources. Some duties
are established in the Texas Disciplinary Rules mentioned above. Some cases exemplify
these duties. Missouri v. Frye, Lafler v. Cooper, and Padilla v. Kentucky demonstrate
some defense attorney’s obligations like: the duty to inform, and the duty of competent
advice. Another source of duties attorneys must perform flows from the duty to perform
like others attorneys would under the same circumstance. This duty to conform to local
norms was established in Strickland v. Washington.64
Some of the duties attorneys must
do to conform to local rules include: duty to investigate, to bargain, and to avoid
collateral consequences.
1. Duty of Competent and Diligent Representation
61 See Lafler v. Cooper, 132 S. Ct. 1376, (U.S. 2012).
62 See Padilla v. Kentucky, 130 S. Ct. 1473(U.S. 2010)
63 Jenny Roberts, Effective Plea Bargaining Counsel, 122 Yale L.J. 2650, 2661 (2013).
64 Strickland v. Washington, 104 S. Ct. 2052, (1984).

22
The Texas Disciplinary Rules of Professional Conduct establishes a duty for
competent and diligent representation in Rule 1.01.65
In the case of Lafler v. Cooper the
court illustrates when incompetent advice results in a breach of effective counsel duty.
Anthony Cooper was charged with assault with intent to murder and was offered a
plea bargain of about four to seven years. Cooper refused the deal on the advice of his
attorney. The attorney advised him that the prosecution could not prove intent to murder
since the victim was shot below the waist. Cooper went to trial and was found guilty and
received approximately fifteen to thirty years. Obviously, the location of the shots had no
bearing in proving intent. The court found the advice so incompetent as to make the
representation short of effective counsel. 66
Additionally, Black’s Law Dictionary defines competent as “a basic or minimal
ability to do something.”67
In legal terms this would mean that an attorney has to be
minimally capable of doing what other attorneys can do.
2. Duty to Communicate
The Texas Disciplinary Rules of Professional Conduct set out a duty to communicate
in rule 1.03.68
Msissouri v. Frye illustrates the communication duty.
Galin Frye faced felony charges but the prosecution sent Frye's lawyer a plea offer
letter with two options: a misdemeanor with ninety days in jail, or a felony with ten days
in jail plus probation. However, the attorney never told Frye about the offers. Just before
his court appearance, Frye was rearrested for the same offense. Frye eventually pled
guilty without any deal and the judge sentenced him to three years in prison.69
“The
Supreme Court held that the counsel's failure to communicate the prosecution's formal
plea offer violated the Sixth Amendment duty to provide reasonably competent assistance
of counsel.” 70
This is a clear example where not communicating offers to client is not
effective counsel.
3. Duty to Protect Confidential Information
The Texas Disciplinary Rules of Professional Conduct institute a duty to safeguard
the client’s information in Rule 1.05. 71
It is easy to see why divulging the client’s
information would be a violation of the effective counsel requirement. Disseminating the
client’s information can lead to the prosecutor finding out unfavorable facts about the
66 Lafler v. Cooper, 132 S. Ct. 1376, (U.S. 2012).
67 Black’s, supra note 5, at 138.
68 Texas Disciplinary Rules, supra note29, at 12.
69 See Missouri v. Frye, 132 S. Ct. 1399, (U.S. 2012).
70 Roberts, supra note 60, at 2658
71 Texas Disciplinary Rules, supra note 29, at 19.

23
client. It could also lead to a breaking down of the attorney-client relationship that would
be detrimental to the client. Furthermore, spreading personal and sensitive information
could lead to the client suffering public embarrassment or ridicule. For these and other
reasons, failing to safeguard client’s information would be a breach of the effective
counsel duty.
4. Duty to Perform in conformity to Local Professional
Norms.
We continue by analyzing the duty to conform that creates some other narrower
duties.
In the case of Strickland v. Washington the defendant was convicted of three capital
murders. In the sentencing phase, counsel did not introduce character witnesses or a
psychiatric examination as mitigating circumstances. Strickland received the death
penalty and petition for a writ of habeas corpus.72
The Court established a two-part test to
assess ineffective assistance of counsel. Under this test, the defendant has to prove 1)
counsel's performance fell below an objective standard of reasonableness, and 2) that
counsel's performance gives rise to a reasonable probability that, if counsel had
performed adequately, the result would have been different from the result the client
actually got.73
The first prong speaks to the standard of effective council while the second
prong addresses to the remedy when a breach has occurred. I only address the first prong.
Strickland thus established that effective council is to be measured objectively.
Therefore, a defense attorney must perform according to local standards and norms, as
these norms are what an attorney is expected to perform. A defense attorney will be
effective if he performs like another reasonable attorney would act under the same
circumstances. Additionally, other standards such as the ABA, Local Rules, Professional
Responsibility Rules also establish local norms.
 Duty to investigate flowing from the duty to abide by
local norms.
In Wiggins v. Smith the Court pointed out a duty to investigate that rose from the
professional standards prevailing in the state. Here the defendant was convicted of
capital murder and sentence to death. While on death row the defendant claimed a sixth
amendment violation of effective council because the attorney did not investigate his
background. The court decided that the attorney should have investigated the defendant’s
background and introduced the abuse as mitigating circumstances to avoid the death
penalty. The failure to investigate was a breach of the requirement of effective council.
72 See Strickland v. Washington, 672, 104 S. Ct. 2052, (1984).
73 See Id.

24
The court looked to the common practice in Maryland in capital cases, also to the ABA
Guidelines to analyze the claim that counsel's failure to investigate mitigating
circumstances fell below local norms. 74
 Duty to Bargain flowing from the duty to conform to
local norms.
Moreover, since an attorney is expected to act as other attorneys would under the
same circumstances, one can infer that an attorney has an obligation to plea bargain.
Jenny Roberts, Professor of Law at Washington College of Law, explains that “[i]n a
criminal justice system dominated by plea bargaining, this can also be interpreted to
mean that defense counsel may be required to actively pursue the client's goals through
effective negotiation, rather than to wait passively for offers from the prosecution.” 75
It is easy to see how an attorney would be found ineffective if he failed to plea
bargain like any other attorney would. Unless the attorney had a legitimate strategic
reason to avoid the plea bargaining, not doing so would fall below local norms and would
thus be considered ineffective. 76
 Duty to Avoid Severe Collateral Consequences flowing
from local norms
In Padilla v. Kentucky Jose Padilla had been a permanent resident of the United
States for over forty years. He had children born in the U.S. and had served in the army.
He was arrested for a felony marijuana possession. He pleaded guilty on the wrong
advice that he did not have to worry about his immigration status. As it turns out, he
faced automatic deportation for the felony conviction. 77
The Supreme Court held that the
defense attorneys had an affirmative duty to advise Padilla about the almost automatic
deportation consequences of a guilty plea. The court concluded that the counsel's acts, or
in this case an omission, were unreasonable under prevailing professional norms, namely
that another attorney would, under the same circumstances, advised of the deportation
consequences.78
The court held that, had Padilla known about the collateral consequences then he
probably wouldn’t have agreed to the deal. So here, the court establishes a duty to
communicate collateral consequences. However, communicating the consequences is not
enough. It is plain to see how an attorney needs to know about severe negative
74 See Wiggins v. Smith, 123 S. Ct. 2527 (2003).
75 Roberts, supra note at 60, 2661.
76 See Roberts, supra note 60. (inferencing that adherence to local norms means that attorneys need to
act like other attorneys would in the same scenario)
77 See Padilla v. Kentucky, 130 S. Ct. 1473(U.S. 2010)
78 Id.

25
consequences and in his zealous defense of the client attempt to avoid adverse collateral
consequences.
In sum, defense attorneys are free to represent zealously without public scrutiny. The
defense attorney has access to all the material facts and can use that in the negotiation.
The defense attorney must comply with many duties in order to be an effective counsel.
Some duties include but are not limited to: duty to competent and diligent representation,
duty to inform, duty to safeguard information, duty to investigate, duty to bargain, duty to
avoid collateral consequences, and a general duty to conform to local norms. Some of
these duties originate from rules set out for him, and some duties come from what other
attorneys would do in his shoes.
V. Recommendations for Defense Attorneys
I’ve analyzed here the origins as well as the current status of plea bargaining and
thus the legitimacy of the process. I’ve also examined the forces working on the
prosecution, explicitly, the public pressure, the concern for legitimacy and justice, their
professional and legal requirements, and their power and discretion that flows from
representing the sovereign. Additionally, I’ve considered the forces on the defense
attorney’s side, for example, the freedom to zealously defend, the more thorough
knowledge of the facts, and the duty to give effective counsel. With all this in mind here
are some recommendations for defense attorneys:
A. Taking Account of All the Forces as Play
To have an effective negotiation the defense attorney must, at a minimum, consider
the following:
 Prosecutors are under strict discipline rules which include but are not
limited to: candor towards the tribunal, probable cause requirement to
prosecute, restrictions when communicating with the defendant, and
the inability to make promises that cannot be supported by the tribunal.
 Prosecutors have an affirmative duty to do justice.
 Prosecutors have a duty to timely turn over evidence that tends to
negate the guilt of the defendant.
 Prosecutors enjoy discretion as well as resources when prosecuting
crimes.
 Prosecutors are under public scrutiny as well as public pressure to
respond to community needs.
 Defense attorneys must keep in mind that although they are under the
same rules of professionalism there are no special rules for defense
attorneys.

26
 Defense attorneys do not have a duty to do justice, but only to
zealously represent one’s client.
 Clients are entitled to effective council during the plea bargaining
process.
 Defense attorneys likely have a duty to perform according to local
norms, as well as duties to investigate, bargain, avoid collateral
consequences, and inform the client.
 Defense attorneys have a duty to keep information as opposed to
sharing it.
B. Checklist for Defense Attorneys
This checklist is only for the plea bargaining negotiations. This is not to say that the
plea bargaining negotiations is where the defense attorney should start. There are many
other maneuvers to consider before getting to this point, for instance, probable cause
challenges, indictment deficiencies, etc. An entire Guideline for Criminal Defense
Representation can be found at the NLADA website (nlada.org). 79
Plea Bargaining Checklist from the National Legal Aid and Defender
Association.80
Guideline 6.1 The Plea Negotiation Process and
the Duties of Counsel
(a) Counsel should explore with the client the possibility
and desirability of reaching a negotiated disposition of the
charges rather than proceeding to a trial and in doing so
should fully explain the rights that would be waived by a
decision to enter a plea and not to proceed to trial.81
(b) Counsel should ordinarily obtain the consent of the
client before entering into any plea negotiation82
.
(c) Counsel should keep the client fully informed of any
continued plea discussion and negotiations and convey to
the accused any offers made by the prosecution for a
negotiated settlement.83
(d) Counsel should not accept any plea agreement without
the client’s express authorization.
79 See attached appendix A.
80 NLADA Guidelines, supra note 7.
8181 This refers to the duty to bargain. Unless there is a strong strategic reason not to, the defense
attorney should attempt to bargain with the prosecution.
82 Consent is necessary before entering negotiation and in accepting any offer.
83 This relates to the duty to keep the client informed.

27
(e) The existence of ongoing tentative plea negotiations
with the prosecution should not prevent counsel from
taking steps necessary to preserve a defense.84
Guideline 6.2 The Contents of the Negotiations
(a) In order to develop an overall negotiation plan, counsel
should be fully aware of, and make sure the client is fully
aware of:
(1) the maximum term of imprisonment and fine or
restitution that may be ordered, and any mandatory
punishment or sentencing guideline system;85
(2) the possibility of forfeiture of assets;
(3) other consequences of conviction such as deportation,
and civil disabilities;
(4) any possible and likely sentence enhancements or
parole consequences;86
(5) the possible and likely place and manner of
confinement;87
(6) the effect of good-time credits on the sentence of the
client and the general range of sentences for similar
offenses committed by defendants with similar
backgrounds.88
(b) In developing a negotiation strategy, counsel should be
completely familiar with:
What the Defense Attorney has to Offer
(1) concessions that the client might offer the prosecution
as part of a negotiated settlement, including, but not limited
84 Defense attorneys must be affirmative on keeping whatever defense they might use at trial should
the negotiations fail.
85 Knowing what the worst possible scenario will allow defense attorney to create a BATNA (best
alternative to a negotiated agreement). This is important so that the defense attorney may make a
decision on when to go to trial.
86 Section 2, 3, and 4 refer to the duty to watch for collateral consequences.
87 Where and how the client is to serve time is important. If jail time is inevitable, it may be negotiated
ahead of time. The defense attorney should take into account the needs of the client, client’s family,
support network, etc.
88 When the prosecutor makes an offer, the defense attorney should ask “how he came up with it?” It is
important for a defense attorney to see what others have been getting in the like situation so that he
may make reasonable concessions and offers.

28
to: 89
(A) not to proceed to trial on the merits of the charges;
(B) to decline from asserting or litigating any particular
pretrial motions;
(C) an agreement to fulfill specified restitution conditions
and/or participation in community work or service
programs, or in rehabilitation or other programs.
(D) providing the prosecution with assistance in
prosecuting or investigating the present case or other
alleged criminal activity.
What the Prosecution has to Offer
(2) benefits the client might obtain from a negotiated
settlement, including, but not limited to an agreement:
(A) that the prosecution will not oppose the client’s release
on bail pending sentencing or appeal;
(B) that the defendant may enter a conditional plea to
preserve the right to litigate and contest certain issues
affecting the validity of a conviction;90
(C) to dismiss or reduce one or more of the charged
offenses either immediately, or upon completion of a
deferred prosecution agreement;
(D) that the defendant will not be subject to further
investigation or prosecution for uncharged alleged criminal
conduct;
(E) that the defendant will receive, with the agreement of
the court, a specified sentence or sanction or a sentence or
sanction within a specified range;
(F) that the prosecution will take, or refrain from taking, at
the time of sentencing and/or in communications with the
preparer of the official presentence report, a specified
position with respect to the sanction to be imposed on the
89 In addition to knowing what are the worst possible outcomes the defense attorney needs to know
what he has to trade. Having our client plead guilty is but one option but certainly not the only one.
Like in any other negotiation, it is important to know what the prosecutor really cares about, his
interest. The defense attorney can have a much more successful negotiation if he knows what the
prosecutor is truly interested about.
90 Pleading guilty would normally foreclose certain challenges one could make. However, one may
preserve this challenges in a negotiated agreement if part of the deal.

29
client by the court. 91
(G) that the prosecution will not present, at the time of
sentencing and/or in communications with the preparer of
the official presentence report, certain information.92
(H) that the defendant will receive, or the prosecution will
recommend, specific benefits concerning the accused’s
place and/or manner of confinement and/or release on
parole and the information concerning the accused’s
offense and alleged behavior that may be considered in
determining the accused’s date of release from
incarceration.
(c) In conducting plea negotiations, counsel should be
familiar with:
(1) the various types of pleas that may be agreed to,
including a plea of guilty, a plea of nolo contendere, a
conditional plea of guilty and a plea in which the defendant
is not required to personally acknowledge his or her guilt
(Alford plea); 93 94
(2) the advantages and disadvantages of each available plea
according to the circumstances of the case;
(3) whether the plea agreement is binding on the court and
prison and parole authorities.95
(d) In conducting plea negotiations, counsel should attempt
to become familiar with the practices and policies of the
91 If the defense attorney can not a get a deal from the prosecution to recommend a certain sentence,
then the defense attorney can ask the prosecution to stay quiet in the sentencing phase. That way the
defense attorney would be free to argue the court for leniency.
92 Same as above, however in his case the defense attorney is asking the prosecutor not to show any
negative evidence.
93 Pleading guilty in a criminal prosecution admits all the facts alleged. This means that in later
litigation, for example civil litigation. Those facts admitted could be used against the defendant. He
would not be able to defend against them due to the “issue preclusion” doctrine and other doctrines
that keep out issues that have already been decided in the trial. Thus, it may be a good idea to enter
pleas that allow for conviction without admitting guilt and keep the option to contend facts alleged in
this case.
94 An Alford Plea is a plea where the defendant does not admit guilt but admits that the prosecution
has evidence that would likely lead a judge or jury to convict. See Stephanos Bibas, Harmonizing
Substantive Criminal Law Values and Criminal Procedure: The Case of Alford and Nolo Contendere Pleas,
88 Cornell L.R. 1361 (2003).
95 It is extremely important to know how binding the agreement is before pleading. Once the pleading
has occurred the remedies will be slow and onerous. Thus, it is important to make sure that the
agreement is enforceable on the court, prison, and parole authorities.

30
particular jurisdiction, judge and prosecuting authority
which may affect the content and likely results of
negotiated plea bargains.96
Guideline 6.3 The Decision to Enter a Plea of Guilty
(a) Counsel should inform the client of any tentative
negotiated agreement reached with the prosecution, and
explain to the client the full content of the agreement, and
the advantages and disadvantages and the potential
consequences of the agreement.
(b) The decision to enter a plea of guilty rests solely with
the client, and counsel should not attempt to unduly
influence that decision. 97
C. General Negotiation Techniques. 98
In the Plea Bargaining context, the problem is not the attorneys. This is not a personal
contest between persecutors and defense attorney. In spite of the adversarial nature of the
system, defense attorneys and prosecutors work together to achieve a fair outcome. This
means that a defense attorney should not focus on the prosecutor, but instead should
focus on the problem. The defense attorney should view the plea bargain as a
collaborative process, prosecutor and defense attorney working together to solve a
problem. Be hard on the problem, not the people.99
 Emotional Awareness: (Emotional Intelligence)
Although both defense attorneys and prosecutors should remain emotionally
detached, emotions are never the less sure to play a role. Since emotions cannot be
eliminated, they should at least be managed. A defense attorney should remain calm and
in control, after all he’s not the one on trial. The defense attorney should not let his ego or
pride get in the way of a negotiation. Additionally, the defense attorney should be well
aware of the prosecutors’ feelings. The defense attorney should always give an
opportunity to the prosecutor to save face, in order to have an effective negotiation.
It is also extremely important for the defense attorney to recognize and give full
weight to the clients’ emotions. The client comes to the attorney with a life problem and
96This refers to the duty to conform to local norms. It is important for defense attorneys to know how
local prosecutors work in order to get an educated deal out of them.
97 The role of the defense attorney is to negotiate the best deal possible. Then, he should advice of the
advantages nd disadvantages of the deal or trial. However, the decision should rest solely on the client.
98 See Getting to Yes, supra note 21.
99 Id. The authors of Getting to Yes suggest an approach of soft on people hard on problem that is most
applicable in the plea bargaining process.

31
not just a legal problem. It is of great importance to recognize all the problems the client
has. A legal analysis of the matter will not do. An attorney must create a rapport with
clients in order to have an operational attorney-client relationship. Let’s not forget that
one of the strongest tools a defense attorney has, is the knowledge of the facts, which he
cannot get unless he has a good relationship with the client.
 Listening:
In order to understand the emotions of the client, prosecutor, witnesses, etc, the defense
attorney must listen. The defense attorney should listen twice as much as he speaks.100
Never interrupt whoever is speaking. Do not interrupt the prosecutor, do not interrupt the
client.101
Active listening will lead to an awareness of the emotions at play, as well as the
interests, two major players in a good negotiation.
 Focus on interests, not positions:
Once the defense attorney has found the interest of the client and prosecutor, he
should focus on them. Do not focus on position, focus on interest. The difference
between these two is the difference between the illness and the symptom. Dealing with
the symptom does not cure the patient only dealing with the illness can achieve that.
Thus, focus on the interest the prosecutor has, is he seeking retribution for a grieved
victim, restitution of property, deterrence of future crimes?
In order to flesh out the true interest of the prosecutor the defense attorney should
ask questions. Asking open ended question will get people talking about their interests.102
Once the defense attorney finds out the interest, he should speak about his own
interest. It is important to let the prosecutor know what the defendant’s interests are.
Once the defense attorneys know the prosecutors interest then a solution can start
to take form. This is where the thorough knowledge of all the options is necessary. The
defense attorney must be completely aware of all the concessions he has to offer and all
the benefits he can receive.103
Whit this knowledge the defense attorney may create
BATNA, and a plan of action for the negotiation.
 Using Objective Criteria:
When coming up with a solution, the defense attorney may insist on finding out
what previous settlements have been for similar circumstances. This information is
100 Peter Reilly, Negotiation in a Nutshell (Spring, 2014) (unpublished outline on negotiation,
distributed in Special Topics in Negotiation Seminar at Texas A&M School of Law)
101 Id.
102 Id.
103 See Getting To Yes, supra note 21.

32
important to have as it is an objective criterion for this deal. The defense attorney should
insist the prosecution to offer a similar deal as before.104
 Power Differential Strategies:
The prosecutor will inherently have more power than the defense attorney. The
prosecutor has the resources of the state and it is not facing criminal charges. Naturally,
he is in a stronger position to bargain.
To counter the power differential the attorney must be fully aware of everything
the prosecution has to go through to convict. The defense attorney has to be fully aware
of the charges and the worst possible consequences for each charge. With this knowledge
the defense attorney should prepare a BATNA and never allow the bargain to cross the
bottom line.105
The defense attorney must make good use of every resource available to him. As an
attorney there are many challenges that can be made in pursuit of a defense. Although the
Texas Disciplinary Rules institute that attorneys should not delay judicial procedures,
sometimes the insurance of due process will inevitably delay the proceedings. So, if the
prosecution is truly adamant about not dealing, then the defense attorney should use
every maneuver up his sleeve. The goal here would be to make the prosecution as
onerous as possible in an attempt to persuade the prosecutor to plea bargain.
VI. Conclusion
The Plea Bargaining Process is the foundation of the American Criminal Justice
System. It is the most prominent component of the process. With legal exposure of
property and liberty and the involuntary nature of the process, a plea bargaining
negotiation is probably one of the most important negotiations a person will endure. The
defense attorney is charged with the skillful maneuvering in the defense of the client in
this bargaining. Hence, a defense attorney must be aware of the process, the prosecutors’
position, his own position, and the range of options available. He must also bring to bear
every negotiation technique he can muster to deliver effective counsel.
104 Id.
105 Id.

33
Sources
Josh Bowers, Grassroots Plea Bargaining, 91 Marq. L. Rev. 85 (2007)
Robert E. Scott William, Plea Bargaining As Contract, 101 Yale L.J. 1909 (1992)
George Fisher, Plea Bargaining's Triumph, 109 Yale L.J. 857 (2000)
Melanie D. Wilson, Prosecutors "Doing Justice" Through Osmosis-Reminders to
Encourage A Culture of Cooperation, 45 Am. Crim. L. Rev. 67 (2008)
Wesley MacNeil Oliver, Toward A Common Law of Plea Bargaining, 102 Ky. L.J. 1
(2014)
Jeffrey L. Kirchmeier, Vigilante Justice: Prosecutor Misconduct in Capital Cases, 55
Wayne L. Rev. 1327 (2009)
Bruce A. Green, Why Should Prosecutors "Seek Justice"?, 26 Fordham Urb. L.J. 607
(1999)
Jenny Roberts, Effective Plea Bargaining Counsel, 122 Yale L.J. 2650 (2013)
Roger Fisher, William Ury & Bruce Patton, Getting To Yes: Negotiating Agreement
Without Giving In (rev. ed. 2011)
Ross Galin, Above the Law: The Prosecutor's Duty to Seek Justice and the Performance
of Substantial Assistance Agreements, 68 Fordham L. Rev. 1245 (2000)
Black’s Law Dictionary 573 (4th Pocket ed. 2011)
Texas Disciplinary Rules of Professional Conduct, State Bar of Texas (May. 13, 2014),
http://www.texasbar.com/AM/Template.cfm?Section=Grievance_Info_and_Ethics_Helpl
ine&Template=/CM/ContentDisplay.cfm&ContentFileID=96
Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, (U.S. 1963)
Missouri v. Frye, 132 S. Ct. 1399, (U.S. 2012).
Lafler v. Cooper, 132 S. Ct. 1376, (U.S. 2012)
Padilla v. Kentucky, 130 S. Ct. 1473(U.S. 2010)
Strickland v. Washington, 466 U.S. 668, 672, 104 S. Ct. 2052, 2056, 80 L. Ed. 2d 674
(1984)
Wiggins v. Smith, 123 S. Ct. 2527 (2003).

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