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April 29, 2012

DOES MISSOURI v. FRYE EXTEND TO IMMUNITY OFFERS?

Elmer "Al" Bowman, a former staffer with the PA Senate Republican Caucus who pled guilty in the "Computergate" case, has sued his criminal defense lawyers for malpractice, breach of fiduciary duty, and breach of contract. Bowman claims his lawyers failed to tell him that prosecutors had offered immunity in return for his cooperation in the investigation, and as a result he was charged with 48 counts. Whether or not Bowman's claims have any merit, the U.S. Supreme Court's March 21 decision in Missouri v. Frye also shows the perils of plea practice and raises some interesting questions in light of the Bowman suit.

251732_agreement__signing.jpgIn Frye the Court held that a lawyer is ineffective when he or she fails to communicate to the client a formal plea offer from the prosecution that is favorable. Does this ruling extend to offers of immunity? While not a "plea offer," an immunity offer is certainly "favorable" to the defendant, and failure to disclose it to a client could have the same adverse consequences.

The takeaway from both Frye and the Bowman complaint is the need to document in writing all offers from the government, whether of immunity or plea deals. Otherwise you subject your law firm to the risk of being sued, and may face an ineffectiveness claim as well.