Monday, January 7, 2008

Uncommunicated Offer

A defendant convicted of first degree murder claimed that her trial counsel was ineffective in that, among other things, he had failed to communicate an offer from the prosecution to plead guilty to second degree murder. The trial court found that counsel had failed to advise his client of the offer but that the defendant likely would have rejected it. The Nebraska Supreme Court affirmed both findings and denied postconviction relief: "the defendant must demonstrate a reasonable probability that, but for counsel's deficiency, he or she would have accepted the plea."

Note what appears to be a clear finding of an Rule 1.2 ethical violation in the failure to advise the client of the offer. If the disciplinary counsel investigates, would the lawyer be collaterally estopped from claiming that he did tell the client about the plea deal? (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2008/01/uncommunicated.html

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