Ineffective Assistance – The Ninth Circuit suggests that the Sixth Amendment right to counsel may apply to a defense lawyer’s failure to communicate a pre-indictment plea offer to a client who is the target of an investigation.
The Court denied a defendant’s appeal from a 2255 motion alleging his counsel was ineffective for failure to inform him of a pre-indictment plea when he was the target of an investigation. The attorney had provided notes and other evidence affirming he had notified the client.
The Court ultimately held that circuit precedent held the right to effective counsel under the Sixth Amendment does not attach until formal charges are filed, and this was not the case to reconsider those precedents, but the Court left open the idea that there could be cases where the right to counsel attaches before indictment, especially if there are pre-indictment plea negotiations.
Concurring, Judge Thomas wrote that the Sixth Amendment right to counsel should attach when there is a “functional equivalent of an indictment,” and Judge Berzon concurred that the Ninth Circuit’s prior opinion Hayes should be reconsidered.
Appeal from the District of Nevada
Per Curiam Opinion by Thomas, Schroeder, Berzon
Click here to read the opinion.