Should I Follow My Colorado Criminal Defense Lawyer’s Advice?

By H. Michael Steinberg, A Colorado Criminal Defense Lawyer – Practicing Colorado Criminal Law in the courts of Colorado for over 40 years.

Introduction:

This article is intended to provide a window into a question nearly every criminal defense client asks at some point:

Why is my lawyer telling me to do this?

Whether the recommendation is to take a plea, reject one, file a motion to suppress, and then take the case to trial, that advice, whatever it is, is never a guess; it is the product of a structured analysis of Colorado law, professional ethics rules, and decades of case law … all of which shape the lawyer’s advice.

This guide walks through how that analysis works, who ultimately gets to make the final call, and what happens on the rare occasion a lawyer’s advice turns out to be completely wrong under the facts and the evidence of the case.

Understanding Why a Defense Lawyer Recommends a Specific Course of Action in a Colorado Criminal Case

First, Who Actually Decides To Follow A Course Of Action? The Client – Lawyer Division of Authority

Colorado’s ethics rules draw a firm line between decisions that belong to the client and decisions that belong to the lawyer. Under Colo. RPC 1.2(a), a lawyer must abide by the client’s decisions about the objectives of the representation, while the lawyer controls the “means” by which those objectives are pursued.

In a criminal case specifically, this rule, Colo. RPC 1.2(a) reserves four decisions exclusively for the client, after consultation with counsel:

What plea to enter;
Whether to waive a jury trial;
Whether to testify; and
Whether to appeal.

Everything else — how to negotiate with the district attorney, which motions to file, how to cross-examine a witness, what evidence to emphasize at hearings and at trial — are all tactical judgments that belong solely to the lawyer.

A defense attorney’s “recommendation” is advice about a decision the client is legally entitled to make, built on the lawyer’s independent judgment about strategy and tactics that the lawyer is entitled to control.

The Lawyer’s Duty to Explain — Not Decide

Because the most consequential decisions in a criminal case legally belong to the client, Colorado’s rules impose a corresponding duty on the lawyer to make sure the client understands what’s actually at stake before deciding.

Colo. RPC 1.4 requires a lawyer to reasonably consult with the client about how objectives will be pursued, keep the client informed of the matter’s status, and — most critically — “to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

That duty is why a competent recommendation should almost never arrive as a bare instruction to the client to (“take the deal” or “let’s go to trial”). It should include the lawyer’s reasoning, based on the strength of the evidence, the realistic range of outcomes, and the risks on both sides of the courtroom.

A lawyer who simply tells a client what to do without walking through the why of that recommendation is NOT meeting the standard found in Colorado’s rules above — and the Sixth Amendment’s guarantee of effective assistance of counsel.

The Core Factors Underlying Your Lawyer’s Advice

Whether the question is a plea offer, a motion to suppress, or a later decision to take a case to trial, defense lawyers in Colorado are generally working through the same handful of variables.

The Strength of the Evidence

This is usually the single biggest driver of any recommendation.

Attorneys are ethically tasked to:

Weigh the reliability of witnesses,
Weigh the quality of forensic or digital evidence,
Weigh whether any evidence is vulnerable to a motion to suppress, and
How a jury is likely to receive the evidence.

Academic research on plea decisions confirms what practicing defense attorneys already know: the probability of conviction based on the strength of the state’s evidence, and the value of a plea relative to the likely sentence at trial, are consistently rated as the most influential factors in a recommendation.

For defendants, the decision of whether to waive their rights and accept a guilty plea versus take their case to trial is “the most important decision in any criminal case.”

Portland State University Criminology and Criminal Justice Faculty
Publications and Presentations Criminology and Criminal Justice
2019 Plea Bargaining: The Influence of Counsel

Realistic Sentencing Exposure

A recommendation is only meaningful when it’s grounded in an accurate picture of what sentence a client is actually facing. That means calculating the presumptive sentencing range for each charge, whether any charges run concurrently or consecutively, and whether any sentence enhancers apply. Colorado’s habitual criminal statute, for example, can triple or quadruple the presumptive maximum sentence — for defendants with qualifying prior felony convictions.

A lawyer who doesn’t factor in potential sentencing exposures isn’t giving a real recommendation — they’re offering incomplete analysis.

What a Plea Agreement Actually Guarantees

Clients sometimes assume that once the prosecutor and defense lawyer agree on a recommended sentence, that’s the exact sentence that will be imposed. Colorado law provides otherwise. As Judges always advise at the time of taking a plea: the sentencing terms in a plea agreement are recommendations to the judge, not binding commitments, and the trial court must exercise independent judgment about whether to follow them – C.R.S. § 16-7-302(3) and Colorado Rule of Criminal Procedure 11(f)(5),(the trial court must exercise independent judgment in deciding whether to accept or reject the parties’ agreed upon sentencing terms).

If a judge declines to follow the agreed sentencing recommendation, the defendant — not the prosecutor — decides whether to accept the new sentence or withdraw the plea and start over.

The best summary of the steps during the negotiation stage of a criminal case that I found is found in the following excerpt:

The Defense Attorney’s Role

There are three phases in the plea-bargaining process: the preparation phase, the negotiation phase, and the client-counseling phase.

The first phase involves the defense attorney preparing to meet the client, conducting client interviews, investigating the case, establishing the legal background of the case, gathering information, and preparing the client for the plea negotiation phase. This phase is relatively straightforward, and during this time the defense attorney will orient himself to the case, client, and other legal actors involved (i.e.,prosecutor and possible judges).

The second of these phases is the plea negotiation phase. During the plea negotiation phase, the defense attorney and prosecutor discuss possible plea offers and counter-offers. When settling a criminal case, the parties involved must attempt to reach an agreement on the disposition of a case that satisfies the interests of both the prosecution and defense, without proceeding to trial.

If the risks at trial for the defendant are deemed to be large, then effective assistance of counsel is securing a plea deal for the client. Thus, during the negotiating phase, the defense’s goal is to secure the least damaging plea deal for the client.

The negotiation phase typically begins early, as there might be an incentive for the defendant to accept a plea offer quickly and for the defense attorney to gain access to discovery as soon as possible. Even if the defense attorney has an opinion about whether the case would be best suited for trial or a guilty plea, the defense attorney has an obligation to explore negotiation with the prosecutor if the client appears open to the possibility of a guilty plea.

The final phase is the client-counseling phase, which occurs once the prosecutor has offered a plea and the defense attorney counsels his client about the plea offer. This phase is arguably the most important phase in which to examine the influence of the attorney. If the defense attorney has determined that accepting a plea offer is in the client’s best interests and the attorney advises the client of this, the attorney should thoroughly explain his reasoning to the client (e.g., the evidence against the defendant, perception of probability of guilt at trial. The attorney should advise the client of not only the benefits, but also the consequences associated with accepting the guilty plea.

Portland State University Criminology and Criminal Justice Faculty
Publications and Presentations Criminology and Criminal Justice
2019 Plea Bargaining: The Influence of Counsel

The Client’s Goals and Other Circumstances

The “right” recommendation for one client can be the wrong one for another with an identical fact pattern. For example, in People v. Campos-Corona, a Colorado Court of Appeals division found that a defendant’s “overriding goal” in accepting a plea was avoiding a prison sentence — which is why, even where his lawyer’s immigration advice was found deficient, the court concluded it would not have been irrational for him to take the plea anyway.

A good recommendation accounts for what actually matters to the individual client: custody status while the case is pending, employment, immigration status, family obligations, and appetite for risk all shape what “the best outcome” looks like.

Timing and Leverage

Plea offers frequently improve as trial approaches, and defense leverage often shifts as the state’s witnesses are subpoenaed, discovery deadlines pass, and suppression motions are litigated. Recommendations made early in a case are often provisional — subject to change once discovery is fully reviewed, motions are decided, or new evidence comes to light.

When the Recommendation Turns Out to Be Wrong

I have written on this subject in a previously published article (link here):

Because these decisions carry such weight, Colorado and federal law both provide a mechanism for a defendant to challenge a lawyer’s advice after the fact: a claim of ineffective assistance of counsel. The standard, from Strickland v. Washington, requires the defendant to show two things:

Counsel’s performance fell below an objective standard of reasonableness (“deficient performance”); and
There is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different (“prejudice”).

In the plea context specifically, prejudice means showing a reasonable probability that the defendant would have rejected the plea and insisted on going to trial — a standard the U.S. Supreme Court applied to a strikingly similar dispute over parole-eligibility advice in Hill v. Lockhart.

Colorado courts require that assertion – a reasonable probability that the defendant would have rejected the plea and insisted on going to trial —to be corroborated by objective evidence — not just the defendant’s after-the-fact say-so — and then ask…

….. whether rejecting the plea would actually have been rational given the strength of the state’s case, the attractiveness of the deal, and the risks of trial,

People v Duran 2025 COA 34 (Colo. App. Mar. 27, 2025.

That framework is exactly why Duran lost was that, even assuming his lawyer gave him incorrect parole information, the Court of Appeals found no rational version of events in which he would have turned down a plea capping his exposure at 40 years, in a case the court called “exceptionally strong” for the prosecution, over a dispute about when he’d become parole-eligible.

The Supreme Court’s decisions in Missouri v. Frye and Lafler v. Cooper extended this same protection to the other direction — a lawyer who fails to communicate a plea offer before it lapses, or gives deficient advice that causes a client to reject a favorable deal, can also be found ineffective.

Colorado’s own case law has recognized ineffective assistance when counsel failed to properly investigate and advise on immigration consequences, as in People v. Kazadi .

Changing Attorneys Because of Disagreement

An attorney will typically keep representing a client even if they disagree with the client’s decisions, unless the client’s decision is illegal or extremely unethical.
If the disagreement prevents the attorney from providing effective representation, the lawyer may seek to withdraw from the case.
A judge then decides whether the attorney is allowed to withdraw and if the defendant can hire a new lawyer.
Judges usually approve this request as long as it does not cause unnecessary delays or undermine the prosecution’s case.

Quick Reference: Who Decides Analysis With Rules and Case Law

Question	Who Decides / What Applies
What plea to enter	Client, after consultation with counsel (Colo. RPC 1.2(a))
Whether to waive jury trial	Client, after consultation with counsel (Colo. RPC 1.2(a))
Whether to testify	Client, after consultation with counsel (Colo. RPC 1.2(a))
Whether to appeal	Client, after consultation with counsel (Colo. RPC 1.2(a))
Which motions to file, trial strategy, cross-examination	Lawyer’s tactical judgment (Colo. RPC 1.2(a))
Whether the court must follow an agreed sentencing recommendation	No — the court exercises independent judgment (C.R.S. § 16-7-302(3); Colo. R. Crim. P. 11(f)(5); People v. Mazzarelli, 2019 CO 51)
Standard for challenging bad advice	Deficient performance plus prejudice (Strickland v. Washington, 466 U.S. 668 (1984))
Prejudice standard for a rejected/accepted plea	Reasonable probability the defendant would have gone to trial instead, corroborated by objective evidence and rational under the circumstances (Hill v. Lockhart, 474 U.S. 52 (1985); People v. Duran, 2025 COA 34)
Immigration consequences of a plea	Counsel must advise noncitizen clients of deportation risk (Padilla v. Kentucky, 559 U.S. 356 (2010); People v. Pozo, 746 P.2d 523 (Colo. 1987))
Missed or mishandled plea offers	Counsel must communicate all formal offers; deficient handling can be ineffective assistance (Missouri v. Frye, 566 U.S. 133 (2012); Lafler v. Cooper, 566 U.S. 156 (2012))

This table reflects general Colorado and federal standards and can be affected by the specific facts, charges, and procedural posture of an individual case. It is for general orientation only and is not a substitute for case-specific legal advice.

Key Takeaways

A defense lawyer’s recommendation is advice about a decision that, in most of the situations that matter most — plea, jury waiver, testifying, appeal — legally belongs to the client, not the lawyer.
Colorado’s ethics rules require the lawyer to explain the reasoning behind a recommendation well enough for the client to make an informed choice, not just deliver a conclusion.
Recommendations by criminal defense lawyers must be built from a consistent set of factors: the strength of the evidence, realistic sentencing exposure (including enhancers and parole eligibility), what a plea agreement actually guarantees once it reaches a judge, collateral consequences, and the client’s own goals and circumstances.
Even a plea agreement with a specific recommended sentence is not binding on the judge — Colorado courts must exercise independent judgment, and the defendant retains the right to withdraw a plea if the court departs from the agreed recommendation.
When a lawyer’s advice is later challenged as constitutionally deficient, Colorado courts apply the Strickland framework and ask whether rejecting the recommendation would actually have been a rational choice given everything the client knew and faced — not simply whether, in hindsight, the client wishes they’d chosen differently.

Summary and Conclusion

Legally trained and highly experienced Colorado criminal defense lawyers are well-versed in the criminal justice system, and their expertise enables them to navigate complex legal procedures, advocate for clients’ rights, and build strong defenses tailored to each case. It is their job to guide you through the legal proceedings.

They gather evidence, present and argue in court on your behalf, and negotiate plea deals. They have in-depth knowledge of the law and understand how it applies to your case. Therefore, listening to their advice on legal strategies that will benefit your case is crucial to the outcome of your trial.

Objective Viewpoint: Your criminal defense lawyer will offer you an objective viewpoint on your case and its possible outcomes, unlike family or friends, who may be offering only emotional support. They will help you to see the case’s weaknesses or strengths and how your actions could potentially affect the outcome.

By accepting and implementing their advice, you are making informed, rational decisions, not just emotional ones. Increased chances of success: Following your attorney’s guidance is crucial to your case’s outcome.

Failing to implement their counsel means you are making decisions with limited legal knowledge, and this could be detrimental to your case. Your criminal defense lawyer’s advice is based on their experience, legal expertise, and desire to protect your rights and secure positive outcomes for you in court.

Thus, if you disregard their legal advice, your chances of success decrease dramatically.

Legal Consequences of Ignoring Advice: Ignorance is no excuse in a court of law. Therefore, failing to follow the advice of your criminal defense lawyer could result in more serious legal consequences. If you decide to reject your lawyer’s advice, which you absolutely have a right to do, you could end up with a more severe sentence, further complicating your legal situation. You might also face additional charges which could have been avoided if you’d taken your lawyer’s legal advice.

Trust and Confidence: Following your criminal defense lawyers’ advice builds trust between you and your legal team. It also gives you confidence that everything is being done to protect your rights and build a strong defense. This will enable you to stay calm and focused throughout the legal proceedings, despite the stress and anxiety surrounding your situation.

Ultimately, adhering to your lawyer’s guidance can make a significant difference in the outcome of your case. By cooperating fully, you help ensure that your defense is as effective and comprehensive as possible. Remember, your lawyer’s experience and knowledge are invaluable assets during this challenging time. Prioritizing their recommendations demonstrates your commitment to your case and can greatly improve your chances of achieving a favorable result.

Staying engaged and proactive throughout the legal process not only supports your defense but also fosters a strong partnership with your attorney. Trust in their expertise, keep communication open, and always seek clarification when needed.

By maintaining this collaborative approach, you empower your legal team to advocate effectively on your behalf. Ultimately, your active involvement can make a significant difference in the outcome of your case.

What Your Criminal Defense Lawyers Can Do For You: A Checklist

Can help you understand the charges and penalties you are facing, and explain your legal options and rights.
Can devise a defense strategy tailored to your specific situation and goals and present it effectively in court.
Can challenge the evidence and witnesses against you, and look for any errors or weaknesses in the prosecution’s case.
Can negotiate with the prosecutor for a plea bargain or a reduced sentence, if possible
Can protect you from any unfair or unlawful treatment by the police, the court, or jail staff.
Can provide you with professional support and guide you through the complex and stressful criminal justice process.

If You Have Questions About Your Own Case

Every recommendation a defense lawyer makes should be explainable — grounded in the specific evidence, charges, and exposure in your case, not boilerplate advice.

If you’re weighing a plea offer, deciding whether to go to trial, or simply want to understand why your attorney is recommending a particular path, you’re entitled to ask for — and receive — that explanation.

This article is provided for general informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship between you and The Steinberg Colorado Criminal Defense Law Firm.

Colorado Criminal Law – Should I Follow My Colorado Criminal Defense Lawyer’s Advice?

The reader is alerted that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article above was accurate when it was drafted, but it cannot account for changes that occurred after it was uploaded.

Laws change, and the application of law to specific facts varies from case to case — consult a licensed Colorado attorney about your particular situation.

ABOUT THE AUTHOR: H. Michael Steinberg – Email the Author at: hmsteinberg@hotmail.com

A Denver, Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – please call 720-220-2277.

“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

Putting more than 40 years of Colorado criminal defense experience to work for you.

You should be careful to make a responsible choice when selecting a Colorado criminal defense lawyer. We encourage you to “vet” our firm. Over the last 40 years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, including Colorado criminal law and procedure and trial and courtroom practice.

H. Michael works hard to deliver the best possible results for his clients, both in and out of the courtroom. He has written extensively on Colorado criminal law and continues to do so, and he hopes this article helps you in some small way.