January 31, 2019

1989 Guideline 11.6.2


A. In order co develop an overall negotiation plan, counsel should be fully aware of and make sure the client is fully aware of:

1. the maximum penalty that may be imposed for the charged offense(s) and any possible lesser included offenses;

2. where applicable, any collateral consequences of potential penalties less than death, such as forfeiture of assets, deportation and civil liabilities, as well as 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.

B. In developing a negotiation strategy, counsel should be completely familiar with, inter alia:

1. concessions that the client might offer, such as:

a. an agreement not to proceed to trial on the merits of the charges;

b. an agreement not to assert or further litigate particular legal issues;

c. an agreement to provide the prosecution with assistance in investigating or prosecuting the present case or other alleged criminal activity;

d. an agreement to engage in or refrain from any other conduct, appropriate to the case.

2. benefits the client might obtain from a negotiated settlement, including inter alia:

a. a guarantee that the death penalty will not be imposed;

b. an agreement that the defendant will receive, with the assent of the court, 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 issues affecting the validity of the conviction.

C. In conducting plea negotiations, counsel should be familiar with:

1. 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 contendre or other plea which does not require the client to personally acknowledge guilt;

2. the advantages and disadvantages of each available plea according to the circumstances of the case;

3. whether a plea agreement can be made binding on the court and on penal/parole authorities.

D. In conducting plea negotiations, counsel should attempt to become familiar with the practice and policies of the particular jurisdiction, the judge and prosecuting authority, the family of the alleged victim and any other persons or entities which may affect the content and likely results of plea negotiations.