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Hastings Constitutional Law Quarterly

Abstract

After years of hesitation to acknowledge instances of ineffective assistance of counsel under the standard set in Strickland v. Washington (1984), the Supreme Court has addressed it head-on in the context of pleabargaining. In three recent cases-Padilla v. Kentucky (2010), Lafler v. Cooper (2012), and Missouri v. Frye (2012)-the Court attempted to define defense counsel professionalism and fashion remedies for lack thereof. But these cases are far from the first effort to regulate the quality of counsel in plea bargaining.

The Article starts by using insights from classic courtroom ethnography to explicate the main issues that influence defense practices in plea bargaining-particularly the pressures and temptations to push clients toward a guilty plea. The Article then examines the ways in which constitutional doctrine has addressed and regulated defense performance in plea bargains, addressing the duties toward the client, the prosecution, and the court, focusing primarily on the three new cases, but also on their predecessors and progeny. It then examines the requirements and guidelines for defense attorneys in ethical regulation. Finally, the Article addresses the areas that legal and ethical regulation has not been able to regulate: defense assessment of the "value of the case," the management of client hopes, and the defense's role in the procurement of inconsistent pleas. The Article concludes by making suggestions for "best practices" and training tools in these difficult-to-regulate areas.

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