St. Mary's Law Journal


Plea bargaining is such an essential component of the administration of justice that disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. Even though 95% of felony criminal cases nationwide are resolved through plea bargaining, there are no specific ethical rules governing the practice. The exhortation in article 2.01 of the Texas Code of Criminal Procedure states it is the primary duty of all prosecuting attorneys to see that justice is done, rather than merely convicting. In order to determine the ethical boundaries of plea bargaining, attorneys must rely on general constitutional principles, disciplinary rules, and ethical provisions. The interplay between constitutional and ethical rules provides the boundaries within which both parties must conduct themselves during plea bargaining. Yet, neither of those sets of rules or principles truly cover plea bargaining. While the practice of plea bargaining has withstood constitutional attack, nevertheless constitutional limits remain. These exist to protect both the free will of the accused and the professional integrity of counsel involved. Although a defendant does not have either a constitutional or statutory right to a plea bargain offer, the defendant does enjoy the Sixth Amendment right to effective assistance of counsel. The accused also enjoys the constitutional and statutory right to accept or reject any plea offer made by the State. Texas Disciplinary Rules of Professional Conduct do not directly address many ethical issues which arise in criminal plea bargaining. Yet, lawyers who follow both the specific constitutional duties governing plea bargaining and the general rules of conduct for lawyers can avoid most ethical dilemmas which prosecutors and defense attorneys confront in the course of plea bargaining.


St. Mary's University School of Law