The criminal defense lawyer’s professional responsibility to each client is timely communicating plea offers made by the prosecutor. When a defense attorney fails to communicate a plea bargain offer to a client, they commit ineffective assistance of counsel, which can often lead to reversal of conviction in a criminal case.
To establish an ineffective assistance of counsel claim the client must:
- Prove their defense lawyer’s representation fell below an objective standard of reasonableness; and
- Prove the attorney’s deficient performance resulted in prejudice to the client.
Failure of defense counsel to inform a client of a plea offer made by the prosecution is an omission that falls below a standard of professional reasonableness. Furthermore, courts have been unanimous in finding that defense counsel’s failure to inform a client of a plea offer constituted a violation of the person’s Sixth Amendment constitutional right to effective assistance of counsel.
But the failure to advise the client of the plea offer is not quite enough to obtain a reversal. The client must also prove they were harmed by the lawyer’s unprofessional conduct. In other words, the client must further establish they would have accepted the plea offer had it been timely communicated to them by their lawyer. Luckily, the courts have not required defendants prove the trial court would have accepted the plea bargain to establish harm, but only that the defendant missed the opportunity of accepting such a bargain and presenting it to the trial court for its consideration.
If you find out your criminal defense attorney failed to communicate a plea offer to you, contact new defense counsel immediately. Relief might be available! But you need to discuss the matter with an informed and experienced criminal defense lawyer as soon as possible.
Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.