2003 Guideline 10.9.1

GUIDELINE 10.9.1 – THE DUTY TO SEEK AN AGREED-UPON DISPOSITION

A. Counsel at every stage of the case have an obligation to take all steps that may be appropriate in the exercise of professional judgment in accordance with these Guidelines to achieve an agreed-upon disposition.

B. Counsel at every stage of the case should explore with the client the possibility and desirability of reaching an agreed-upon disposition. In so doing, counsel should fully explain the rights that would be waived, the possible collateral consequences, and the legal, factual, and contextual considerations that bear upon the decision. Specifically, counsel should know and fully explain to the client:

1. the maximum penalty that may be imposed for the charged offense(s) and any possible lesser included or alternative offenses;
2. any collateral consequences of potential penalties less than death, such as forfeiture of assets, deportation, civil liabilities, and the use of the disposition adversely to the client in penalty phase proceedings of other prosecutions of him as well as any direct consequences of potential penalties less than death, such as the possibility and likelihood of parole, place of confinement and good-time credits;
3. the general range of sentences for similar offenses committed by defendants with similar backgrounds, and the impact of any applicable sentencing Guidelines or mandatory sentencing requirements;
4. the governing legal regime, including but not limited to whatever choices the client may have as to the fact finder and/or sentencer;
5. the types of pleas that may be agreed to, such as a plea of guilty, a conditional plea of guilty, or a plea of nolo contendere or other plea which does not require the client to personally acknowledge guilt, along with the advantages and disadvantages of each;
6. whether any agreement negotiated can be made binding on the court, on penal/parole authorities, and any others who may be involved;
7. the practices, policies and concerns of the particular jurisdiction, the judge and prosecuting authority, the family of the victim and any other persons or entities which may affect the content and likely results of plea negotiations;
8. concessions that the client might offer, such as:
a. an agreement to proceed waive trial and to plead guilty to particular charges;
b. an agreement to permit a judge to perform functions relative to guilt or sentence that would otherwise be performed by a jury or vice versa;
c. an agreement regarding future custodial status, such as one to be confined in a more onerous category of institution than would otherwise be the case;
d. an agreement to forego in whole or part legal remedies such as appeals, motions for post-conviction relief, and/or parole or clemency applications;
e. an agreement to provide the prosecution with assistance in investigating or prosecuting the present case or other alleged criminal activity;
f. an agreement to engage in or refrain from any particular conduct, as appropriate to the case;
g. an agreement with the victim’s family, which may include matters such as: a meeting between the victim’s family and the client, a promise not to publicize or profit from the offense, the issuance or delivery of a public statement of remorse by the client, or restitution;
h. agreements such as those described in Subsections 8 (a)-(h) respecting actual or potential charges in another jurisdiction;
9. benefits the client might obtain from a negotiated settlement, including:
a. a guarantee that the death penalty will not be imposed;
b. an agreement that the defendant will receive a specified sentence;
c. an agreement that the prosecutor will not advocate a certain sentence, will not present certain information to the court, or will engage in or refrain from engaging in other actions with regard to sentencing;
d. an agreement that one or more of multiple charges will be reduced or dismissed;
e. an agreement that the client will not be subject to further investigation or prosecution for uncharged alleged or suspected criminal conduct;
f. an agreement that the client may enter a conditional plea to preserve the right to further contest certain legal issues;
g. an agreement that the court or prosecutor will make specific recommendations to correctional or parole authorities regarding the terms of the client’s confinement;
h. agreements such as those described in Subsections 9(a)-(h) respecting actual or potential charges in another jurisdiction.

C. Counsel should keep the client fully informed of any negotiations for a disposition, convey to the client any offers made by the prosecution, and discuss with the client possible negotiation strategies.

D. 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 along with the advantages, disadvantages and potential consequences of the agreement.

E. If a negotiated disposition would be in the best interest of the client, initial refusals by the prosecutor to negotiate should not prevent counsel from making further efforts to negotiate. Similarly, a client’s initial opposition should not prevent counsel from engaging in an ongoing effort to persuade the client to accept an offer of resolution that is in the client’s best interest.

F. Counsel should not accept any agreed-upon disposition without the client’s express authorization.

G. The existence of ongoing negotiations with the prosecution does not in any way diminish the obligations of defense counsel respecting litigation.

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