Ethics: You Can't Waive Your Own Ineffectiveness
The question presented is whether it is ethical for a criminal defense lawyer to participate in such a plea agreement in the absence of an express exclusion for claims based on ineffective assistance of counsel.
We have determined that it is not. We also believe that prosecutors may not ethically propose or require such a waiver.
Before you scratch your head and ask, "what kind of idiot would do such a thing," consider the scenario. The defendant wants to cop a plea and the plea agreement shows up in your email that embodies an acceptable deal, the one you negotiated after lengthy discussion and argument. Happy day, right?
Except in the body of the plea agreement, never before mentioned, are some terms and conditions you didn't quite expect. A waiver of appeal, a problematic waiver recently rejected by Colorado Judge John Kane when there wasn't a specific factual basis to justify its inclusion as part of the deal, and/or a waiver of collateral attack, as might be raised under federal habeas law, 28 U.S.C. §2255.
For anyone unaware, what this really means is that you are waiving the defendant's ability to later claim that the plea was the product of ineffective assistance of counsel. Perhaps it's because he wanted to cop out after motions were lost, and it turns out that motions were lost because the defense lawyer overlooked something. Or perhaps there was a lack of investigation that would have produced exculpatory evidence and altered the outcome. Whatever.
It is the opinion of the NACDL Ethics Advisory Committee that, aside from whether the courts might give such waivers, the rules of professional ethics prohibit a criminal defense lawyer from signing a plea agreement limiting the client’s ability to claim ineffective assistance of counsel. The lawyer has a conflict of interest in agreeing to such a provision because it becomes a prospective limiting of liability. Therefore, the lawyer is duty-bound to object to portions of a plea agreement that limit 2255 claims and refuse to assent to such an agreement with such language in it.
It is the opinion of the NACDL Ethics Advisory Committee that such a plea agreement provision creates a personal conflict of interest between the criminal defense lawyer and the client that rises to the level of denial of the right to loyal counsel under the Sixth Amendment. It is also a violation of due process of law under the Fifth and Fourteenth Amendments. Defense counsel has a duty to see that the offending provision is removed by the prosecutor or the court because of the inherent conflict it forces on the accused and his or her defense counsel.
All of this is both fine and, frankly, accurate, even though most lawyers wouldn't think of, or be concerned, with, any limitation on their liability. Initially, it's just not a serious concern, but more importantly, few criminal defense lawyers ever think of malpractice liability in the management of their clients or the conduct of their defense. We're a pretty tough group by nature and nurture, and use up all our worrying on the welfare of our clients. We do not tend to worry too much about ourselves, at least in this regard. Getting paid is another matter entirely.
But neither the government nor the courts tend to worry too much about the wholesale evisceration of defendants' rights in the process of disposing of cases. If they could figure out a half-baked legitimate way to toss into a plea agreement a waiver of producing offspring, they might do that as well, and there aren't too many judges (like Judge Kane) who would give it a second thought.
The problem is that the government seeks to impose such collateral terms and conditions by unilateral fiat. They aren't a subject of negotiation. They often aren't even mentioned in the negotiation process. They just show up in the plea agreement, after the deal has been struck and everybody has exhaled.
The defendant has a primary concern: how many years is he going to have to spend in prison. This, by a mile, is the core of the plea, and trumps all other issues at that moment. If he gets a deal he can live with, is he inclined to blow it, to put his foot down and say "I reject the deal" because there are some collateral waivers snuck into the papers at the back end? Not likely.
First, he won't see the waiver as particularly significant, unless the lawyer tells him that there is a serious concern that he's giving up an important right that might later serve to get him out from under the plea. Second, the alternative is going to trial, where he faces his worst nightmare, the million years suggested by the Sentencing Guidelines. Chances aren't good that he'll refuse the plea, with its hard benefits, because of a speculative waiver of dubious worth.
This is why the NACDL's advisory opinion is important. While it's only advisory, it provides a well-conceived argument to go back to the government, and to argue to the judge if he will give a few moments of his important time to such banal matters as a plea agreement, that the inclusion of the waiver would place you in an untenable position of engaging in unethical conduct. It's not that you don't want the plea, but that you cannot be unethical. "Judge, what am I supposed to do? I can't agree to an unethical waiver in a plea agreement."
The best that could come of this opinion is that the issue is resolved by the circuits holding that waiver of the right to collaterally attack a plea based on ineffective assistance of counsel is unethical, and courts must reject plea agreements containing such waivers. This may, and should, happen, but it will take years before the issue ever reaches the circuits, and there is certainly no assurance that they will come out on the right side.
In the meantime, the NACDL ethics opinion provides a well-reasoned basis to refuse to agree to such waivers, and the basis to argue that the government's insistence on a waiver puts defense counsel in an untenable position, as you cannot enter into an agreement that is inherently unethical. Hopefully, district judges will appreciate the problem and refuse to allow the government to ram such waivers down defendants' throats.
H/T Michael K. Bachrach, President, New York Criminal Bar Association