The current criminal practice “is for the most part a system of pleas, not a system of trials.” Those are the words of Justice Anthony M. Kennedy writing for the majority in two decisions handed down by the U.S. Supreme Court on March 21.

This is a realistic but sad commentary on a system once known for great advocacy. The two decisions present troublesome issues regarding defense counsel’s conduct and advice on dealing with guilty plea offers. The decisions are troublesome for the courts and prosecutors, as well as defense counsel.

In Missouri v. Frye , 2012 U.S. Lexis 2321, (March 21, 2012), the defense counsel did not inform the defendant of a guilty plea offer; the defendant later pleaded guilty and received a longer sentence than the plea agreement offered. In Lafler v. Cooper , 2012 U.S. Lexis 2322, (March 21, 2012), the defense counsel advised the defendant to reject a plea agreement on the basis of defense counsel’s mistaken belief that a certain defense could be asserted at trial. The client was convicted and received a far longer jail sentence than the one offered by the plea agreement. In each case there was no dispute that the defense counsel’s conduct fell below acceptable standards.

The Supreme Court reversed both convictions and remanded the cases to the trial court to fashion a remedy for the improper advice and procedure. The justices did not define the procedure for determining the remedy, or what the remedy should be, thus raising more issues to be resolved. The reader is directed to the dissenting opinion in Lafler , which contains a good discussion of the problems involved upon remand.

Although there are many practical and legal problems raised by these cases, this column will focus on the examination of the defense counsel’s conduct in advising the client to reject the guilty plea offer.

In Lafler , the defense counsel rejected the proposed plea agreement on a mistaken legal theory, and the defendant was later convicted after a full trial. The Supreme Court held that the conviction after a fair trial did not cure the substandard advice of the defense counsel and reversed the conviction.

It is realistic to conclude that, based upon Lafler , in cases where defense counsel advises the client to reject a plea offer there is a potential for numerous post-conviction motions, regardless of the merits. This observation is particularly applicable to defendants represented by public defenders and attorneys on the Criminal Justice Act Panel. In those instances, where counsel are assigned by the court, many defendants are wary of their appointed defenders and will readily file a post-trial motion, second-guessing the counsel’s advice.

In light of the Lafler decision, when the defense counsel advises the client to reject a plea offer, what steps must counsel take to protect himself or herself against a possible claim of ineffective assistance of counsel if the defendant is convicted? What record of counsel’s advice must be made, and with whom? Former U.S. District Judge Robert Cindrich advises that the plea advice to the client should be in writing and cover “all bases.” Should defense counsel consult with another attorney for a second opinion, and place such a consult in the file?

Once the defense counsel is presented with a plea agreement he or she may request a “reverse proffer” from the prosecutor, a reasonable preview of the evidence, including a list of witnesses, and summary of testimony so that he or she may be able to better formulate an educated opinion. This is not that far-fetched an idea, as prosecutors make such an informal presentation in some situations. This is not practical in all cases, but it is worth pursuing where the prosecutor and defense counsel both agree a plea will benefit the client. As a result of the two Supreme Court cases there may be a movement to require more expansive discovery from the prosecutor. Under current procedure, it is not within the court’s power to order a preview of the evidence, beyond the limits of discovery provided by the federal criminal rules.

The application of the two decisions may well involve a hearing before the trial court. Michael Engle, former president of the Pennsylvania Association of Criminal Defense Lawyers, said: “The Supreme Court has made it difficult to determine what procedures should be employed by the court to ensure that counsel has provided the defendant with effective representation in the plea bargaining process. It is unclear how far the court should go in interjecting itself in counsel’s plea discussions and advice to a client, especially in situations where that judge may be called upon to hear the case nonjury.”

Some attorneys have suggested that the defense counsel should request the court to take an acknowledgment from the defendant that the defendant is aware of the defense counsel’s advice and is willing to accept it. Should the court initiate the inquiry? In any form this procedure raises serious legal and practical issues.

Edward N. Cahn, former chief U.S. district judge for the Eastern District of Pennsylvania, said: “Rule 11(c), Federal Rule of Criminal Procedure prohibits the court from becoming involved in plea bargaining. Any colloquy with defendant and the attorney about the defense attorney’s advice gets very close to violating that prohibition.” Cahn said that the court would be very constrained in the inquiry, so much so that it would be of little value.

Many judges may well decline to take part in any such procedure without the requirement of a formal rule of procedure. The focus in such an inquiry by the court appears to be not so much on the defendant, but on the defense attorney and his or her preparation. I am troubled by the distasteful prospect of grilling the defense counsel as if he or she were the defendant. Professional groups such as the National Association of Criminal Defense Lawyers and the American College of Trial Lawyers should speak out on the protection of the role of the defense counsel.

At this point in the discussion I put on my old prosecutor’s hat, and I am troubled. The prosecutor is the one party who is placed in a no-win situation by these decisions. Without committing any improper conduct, the prosecutor suddenly may see a valid conviction reversed because of some mistake by the defense counsel. If there is a reversal and remand, at what point does the prosecutor start over?

Zane Memeger, the U.S. attorney for the Eastern District of Pennsylvania, said that his office is considering procedural steps to put in place. He said the prosecutor cannot really delve into the relationship between the defendant and the defense counsel. Likewise, he said, there is a possible problem in requesting the court to make an inquiry of the declination of the plea agreement by the defendant as it may violate Rule 11(c), which prohibits the court from participating in the plea bargaining process. Memeger said his office is considering instituting a protocol that requires all plea agreements to be in writing, and requiring that there must be an acknowledgment that the plea agreement has been given to the defendant.

James B. Martin, who has been the district attorney of Lehigh County for 14 years, takes a different view. Martin feels state criminal practice is somewhat different from federal practice, and based upon the two Supreme Court cases he would have no problem asking the court for assistance. Martin said that in felony cases and “certainly all significant cases” where the plea offer has been turned down, before trial he would approach the trial judge in chambers. He would request the judge to inquire of the defense counsel, in the presence of the defendant, if the defendant had been made aware of the plea offer, and it had been explained to him. He said this inquiry would not be regarded as involving the judge in plea bargaining.

One result of the two Supreme Court cases is there will be a more formal procedure for plea bargaining. The plea offers should be in writing with a time limit for acceptance. There may be reluctance to raise this heretofore informal bargaining process to a formal procedure; however with the Supreme Court now raising plea bargaining to a constitutional level, there is no choice but to formalize the bargaining procedure.

In summary, I believe the attorney-client advice should remain a professional matter between the defense attorney and the client. It is the attorney’s responsibility to take whatever steps necessary to fully advise the client and to protect himself or herself. If defense counsel’s advice is later challenged it is counsel’s documented record of his or her advice and conduct that should be the subject of inquiry. The court should have no part in conducting a pretrial waiver type of hearing and should decline to do so if requested. The prosecutor should formalize the plea agreement procedure and in appropriate cases give a reverse proffer of the proposal evidence. These two outlier cases with very unusual fact situations should not be the cause of an artificial inquiry into the important and protected relationship between defense attorney and client.

As footnote to the increased attention of the Supreme Court on the sentencing process, there should be further attention given to the search for Brady material at sentencing. I have long advocated a specific request by defense counsel and a specific search by the prosecutor for evidence that would mitigate the sentence. For a copy of my proposal on this subject published recently in The Wall Street Journal , email p.vaira@vairariley.com. •

Peter F. Vaira is a principal shareholder in the Philadelphia law firm of Vaira & Riley. He is the author of Eastern District Federal Practice Rules, Annotated (Gann Law Books). He can be contacted by email at p.vaira@vairariley.com. Vaira has a blog devoted entirely to Eastern District practice at http://petervaira.wordpress.com.