Lafler and Frye: A New Constitutional Standard for Negotiation




Batra, Rishi

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In Lafler v. Cooper and Missouri v. Frye, the Supreme Court extended the Sixth Amendment right to effective assistance of counsel from Strickland v. Washington to cover the ineffective assistance of defense counsel in the plea-bargaining process. This article explores the effects of this 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. It then looks to existing standards of professional practice, such as the ABA’s Model Rules of Professional Conduct, other 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. It looks at different situations in which defendants may bring claims of counsel considered ineffective: (1) poor preparation, (2) trading off the interests of one client for another in a plea bargain, (3) taking no time for a plea bargain negotiation, (4) antagonizing the prosecutor, and (5) refusing to bargain. For each of these, the author attempts to apply the 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 overcome in bringing these claims and offers suggestions for future scholarly work.



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


Rishi Batra, Lafler and Frye: A New Constitutional Standard for Negotiation, 14 Cardozo J. Conflict Resol. 309 (2012-2013).