Your case is set for jury trial. The ADA makes a final plea offer (Offer A) to your defense lawyer.Your defense lawyer informs you that the offer was Offer B (Offer B is Offer A plus more fines, jail time, etc) but that he/she had worked the ADA down to Offer A.
I’ll call this practice fake plea bargaining. I heard a story of an an alleged FPB incident. I lack personal knowledge of this event. All would agree this practice would be unethical. For this post let us examine motivation.
Why would a defense lawyer fake plea bargain? Allow me to speculate.
I would guess the primary motivation would be to get the client to take the deal. Rational choice theory tells us that defense lawyers, and defendants look to maximize utility and minimize costs. Trial has costs (time/stress) for lawyers. Also, a plea bargain saves an unprepared lawyer from being exposed.
Second, defense lawyers want to show value. Offer A may suck. But if the client thinks that their attorney helped them narrowly avoid Offer B, and that Offer A will soon disappear, then they are more inclined to not only take offer A, but leave satisfied with their attorney’s work.
Every criminal defense lawyer has tirelessly worked a case that ended with the client accepting a plea offer close to the original offer.
Why? Sometimes our hard work uncovers that our clients have bad cases. Also, many DAs have strict guidelines for plea offers. Defendants may see this process as “I received this initial plea offer, and accepted this final plea offer, and I paid my lawyer $$$ for that?” This in no way justifies misrepresenting plea negotiations to a client. Pressure and disappointing outcomes are part of criminal defense practice. If you can’t handle it, go into probate, don’t fake plea bargain.