When appropriate, counsel should file an interlocutory appeal from the denial of a pretrial motion.
When negotiating the entry of a guilty plea, counsel should consider reserving the right to appeal the denial of a pretrial motion.
Under no circumstances should counsel recommend to the client acceptance of a plea agreement unless appropriate investigation and study of the case has been completed, including an analysis of controlling law and the evidence likely to be introduced at trial. The amount of appropriate investigation will vary by case.
After appropriate investigation and case review, counsel should explore with the client the possibility and desirability of reaching a negotiated disposition of the charges rather than proceeding to trial, and in doing so counsel should fully explain the rights that would be waived by a decision to enter a plea and not to proceed to trial.
Counsel should obtain the consent of the client before entering into any plea negotiation. Exploratory inquiries of the prosecution prior to obtaining client consent are permitted.
Counsel should keep the client fully informed of any continued plea discussions and negotiations and promptly convey to the client any offers made by the prosecution for a negotiated settlement. Counsel may not accept any plea agreement without the client's express authorization.
Counsel should explain to the client those decisions that ultimately must be made by the client, as well as the advantages and disadvantages inherent in those choices. The decisions that must be made by the client after full consultation with counsel include whether to plead guilty or not guilty, whether to accept a plea agreement, and whether to testify at the plea hearing. Counsel also should explain to the client the impact of the decision to enter a guilty plea on the client’s right to appeal. Although the decision to enter a guilty plea ultimately rests with the client, if counsel believes the client’s decisions are not in the client’s best interest, counsel should attempt to persuade the client to change the client’s position.
The existence of ongoing tentative plea negotiations with the prosecution should not prevent counsel from taking steps necessary to preserve a defense.
G. Counsel should confirm that all conditions and promises comprising a plea agreement between the prosecution and defense are included in writing or in the transcript of plea.
In conducting plea negotiations, counsel should attempt to become familiar with any practices and policies of the particular jurisdiction, judge, and prosecution that may impact the content and likely results of a negotiated plea agreement.
In order to develop an overall negotiation plan, counsel should be fully aware of, and make the client fully aware of: