The NYSBA Takes A Swan Dive Into The Ethics Rabbit Hole (Update)

The New York State Bar Association, unlike bar associations in some other states, is a club lawyers can join or not, depending on the need for another impressive certificate to hang on the ego wall to prove to potential clients that you’re worthy of getting paid. It’s a voluntary organization, consisting of some folks who want to improve the law, and some folks who adore being on committees.

One such committee is Ethics, where a bunch of lawyers with dubious qualifications offer advisory opinions on what we’re ethically allowed to do.  Despite the fact that so many around the blawgosphere mistaken believe that these ethics opinions reflect the “rules” for the practice of law, they are merely “advisory,” meaning that they carry no greater force of law than if I set up the SHG Ethics Committee requiring lawyers to wear shoes instead of those ridiculous black sneakers that some lawyers think they can get away with.

That said, the NYSBA’s advisory opinions are given some persuasive authority by the Departmental Disciplinary Committees, which have actual authority over lawyers, all of which makes the inane sophistry ridiculed by Appellate Squawk* worthy of note.

Scene: Courtroom.

A.D.A. Tightskirt:  We’re offering a plea to 20 years on condition that the defendant waive his right to appeal anything whatsoever in any case past, present or future including ineffective assistance of counsel.

Client: (to his lawyer) 20 years just for drinking beer in front of my house? That don’t sound right to me.

Lawyer: Believe me, Mr. Jones, this is a fabulous deal.  You could get life without parole as a mandatory persistent felon if you’re convicted at trial.

Client: I’m not Jones, I’m Rodriguez! This is my first arrest!

Lawyer: Whatever. Sign here.

Judge: Sir! Has your attorney explained to you that a condition of pleading guilty is that you can’t challenge the effectiveness of his representation?

Client: You mean I have to take his word for it that he hasn’t been ineffective?

Judge: How dare you question your lawyer’s competence! Mr. Layback is a seasoned, experienced attorney who’s been coming before me for years and is deeply mindful of the importance of clearing my calendar. The reason he can tell you he’s not ineffective is that he isn’t ineffective. It’s only if he were ineffective that he would have to tell you he’s ineffective.

Client: Huh?

Judge: That’s exactly why you need to rely on Mr. Layback’s legal advice!  As an ignorant layperson, you can’t possibly be expected to understand the law.

Wait. Does that mean what it appears to mean? You bet it does.

A defense lawyer may advise the defendant as to a proposed plea agreement including waiver of challenges to the conviction based on ineffective assistance of counsel unless a reasonable lawyer would find a personal interest conflict of interest, i.e. a significant risk that the lawyer’s professional judgment on behalf of the defendant would be adversely affected by the lawyer’s own interest in avoiding an allegation of ineffective assistance of counsel.  In case of such conflict, the lawyer may continue in the representation if the conflict is waivable and properly waived by the defendant, but otherwise must seek the court’s permission to withdraw from the representation.

Or, in a less circular explanation, it’s ethical for a lawyer to advise a client to waive the right to challenge his own potential ineffective assistance if a “reasonable” lawyer doesn’t think he was ineffective. Or as Squawk explains:

But isn’t that a teeny bit of a conflict of interest? you ask. To advise your client to waive her constitutional right to effective assistance of counsel when you’re the counsel? Not at all! says the Ethics Committee. If you haven’t been ineffective, then you’re just giving your client good advice!

This isn’t merely nuts, but disgraceful.  It’s a flagrant inherent conflict of interest for a lawyer to advise a client to waive that same lawyer’s ineffective assistance. But what this really represents is the NYSBA Ethics Committee’s sleight of hand, avoiding the core problem of prosecutors requiring such a waiver as a condition of a plea.

It’s impossible for a defendant to make a knowing, intelligent and voluntary waiver of ineffective assistance of counsel while being advised and represented by the lawyer who would be the target of such a challenge. Prosecutors know this, or at least should, but couldn’t care less, as their only interest is finality and avoiding the need to address an appeal.

Same for judges, some of whom refuse to accept plea agreements that include such a waiver. Why? Because they know it’s disgraceful and wrong, and the only reason it’s required by prosecutors is because they have sufficient leverage with the key component of a plea, how many years in prison, that they can trade off time for a host of unrelated, unethical, inappropriate conditions.

The correct response by the NYSBA Ethics Committee, obvious to anyone whose fortunes aren’t tied to not pissing off officials like district attorneys, is that of course it’s unethical to agree to such a waiver, and it’s even more unethical to demand such a waiver as a condition of a plea.  That means you, prosecutor.  And to top it all off, it’s unethical for a judge to allow such a waiver.

And if that wasn’t bad enough, the ancillary prosecutorial demand, a general waiver of appeal, is similarly improper, as per District of Colorado’s Judge John Kane, as the defendant gets nothing for it, having waived trial in exchange for the plea.  It’s not that most defendants would have anything to appeal, but that they’re forced to give up a plethora of rights for no better reason than that the prosecutor can ram his conditions down the defendant’s throat.

But at least one condition, waiver of ineffective assistance of counsel, is so facially wrong, so grossly unethical, that the NYSBA Ethics Committee’s opinion is laughably ridiculous and wrong.

* Squawk offers some of the best biting criminal law satire around. If you don’t read Squawk, you’re crazy. Or, using the preferred nomenclature per someone who knows about such things, a “person of tinfoil.”

Update:  Much as I’m no big fan of the organized bar (or the disorganized bar, for that matter), it was pointed out to me that the NYSBA Criminal Justice Section, headed by NYS Supreme Court Justice Mark Dwyer, is trying to get the ethics committee to pull its collective head out of its humongous butt:

The lay client is generally helpless to understand the error and its significance on his own. He can appreciate the importance of the misstep only if counsel explains it to him. But not only is it in counsel’s personal interest not to address the mistake; he also presumably does not himself recognize his error, or he would not have made it in the first place. How can it be correct, either as a matter of ethics or even of common sense, for this individual to be the one to guide the client on whether the ineffective assistance claim should be waived?

The Criminal Justice Section finds the conclusions in the Opinion to be most troubling. We urge your Committee to reconsider, and will happily share with you our experience in the area as you do so.

Bravo, Judge Dwyer. Yet again, you’ve put principle ahead of expediency.

H/T Dan Arshack


25 thoughts on “The NYSBA Takes A Swan Dive Into The Ethics Rabbit Hole (Update)

  1. William Doriss

    SLEIGHT of hand, unless it’s poker. In which case, it’s “switching cards”.
    Out in the LE field, it would be “furtive gesture”!

    1. SHG Post author

      Thank you for being the only person in the first four comments not to note my “slight of hand” typo.

      1. billybob

        Sleightly unconscionable, she said,
        After climbing out of bed.
        If you touch me like that again,
        Off with your head!

        No court today?

  2. Nigel Declan

    On what basis can judges accept a plea for such a constitutional waiver? Is a judge allowed to hand down a sentence, following a sentencing hearing, which includes a waiver of IAC on appeal? If not, then how is such a waiver of legal force and effect?

  3. BJC

    I’d posit that letting a client waive ineffective assistance of counsel at the minimum leads to an inference that the lawyer recommending the waiver was ineffective.

  4. John Barleycorn

    If I was you I would stash a can of spray paint in the courthouse bathroom just in case you happen to spot any black sneakers under a stall door that need polishing.

    Chances are whoever is wearing the sneakers will have earbuds in and will toe taping to the latest tunes. So unfortunately they probably won’t notice and be able to thank you.

    But it’s a thankless job you.

  5. Rendall

    “…than if I set up the SHG Ethics Committee…”

    You really, really need to do this, and have rules (not guidelines) like “lawyers must wear shoes instead of those ridiculous black sneakers”, “prosecutors must turn over ALL exculpatory evidence”, “non-lawyers must be quiet!”, etc.

  6. Marc R

    I’ve seen that issue eradicated by a ballsy elected PD having all his attorneys set trial dates rejecting all pleas waiving any appellate rights. The State quickly changed their probation/confinement templates.

    As a comment above noted, asking my client for that waiver is per se ineffective assistance. The best defense attorney in the world shouldn’t feel upset when an IAC claim is filed. It’s not about YOU being “bad or unethical” but just about theories and defenses you didn’t explore that retroactively would maybe have been helpful. Except for those times when the IAC claim makes you sad that attorney’s high school diploma wasn’t verified.

    1. SHG Post author

      What does this have to do with the post? Marc, if you can’t stay on topic, then I’m going to start trashing your comments. Come on, man.

  7. Appellate Squawk

    Thanks to your nice shout-out our reader stats have rocketed to the high two figures! Call us swell-headed if you will, but we think we’re funnier than Mark Dwyer any day.

    1. SHG Post author

      Despite the occasional knee-slapper respondents brief, I bet even Mark would agree with you.

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