Ethics: You Can’t Waive Your Own Ineffectiveness

The National Association of Criminal Defense Lawyers (NACDL) has  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

11 thoughts on “Ethics: You Can’t Waive Your Own Ineffectiveness

  1. bobowunder

    This of course potentially sets up a new conflict between the client who wants the deal and the lawyer who says I can’t do it. Couldn’t the problem be solved by agreeing to the inclusion of the waiver in the plea but nevertheless taking the position that the waiver is unenforceable should the client later choose to pursue it? Or has this already been decided?

  2. SHG

    It could, if that was how a circuit ruled after the fact. But that’s the problem, enforceability is in the hands of the courts, not the lawyer. So it still places the lawyer in the position of engaging in unethical conduct first, hoping that a court will bail him out later.

    The point is that the situation already exists, and this creates the wedge to be used to argue against its inclusion in the plea agreement. If the government refuses the plea without the waiver, there is nothing the lawyer can do to advise his client to take it or not, since he’s inherently conflicted. As I said, it’s an untenable situation.

  3. Max Kennerly

    In the plaintiff’s world, we ran into a similar issue in Vioxx, and now the issue is commonplace. Merck refused to settle individual cases: instead, it offered plaintiffs’ firms all-clients settlements, where the plaintiffs’ firm had to settle all of its cases or none of them. The end result was to force firms into the impossible situation in which they had the choice of (a) refusing to settle cases the clients wanted to settle or (b) settling the cases that could be settled while dumping the rest.

    It struck me and a lot of lawyers as unethical because it forced us to abandon some clients for the benefit of others. The courts didn’t care, and now the settlements are commonplace in mass torts. Clients who don’t fall in line and settle end up having no firms they can even turn to, because all of them have settled and have agreed — as required in order to settle prior clients’ cases — not to take new clients.

    [Ed. Note: Link deleted out of maliciousness and hatred toward civil litigation. Oh yeah, and per rules.]

  4. SHG

    It’s almost the exact same thing, except for the monumental differences, most notably that the defendant doesn’t have a right to decide, “never mind,” go home and forget all about it.

  5. Max Kennerly

    I didn’t say it was “the exact same thing,” I said it was “similar.” It is similar: one party demanding the lawyer agree to something against their client’s interests as part of resolving the case. The courts turned a blind eye to it in our case. I suppose from your catty reply you think the courts will be much more sympathetic where concerns of liberty are at stake. I sure hope so.

  6. SHG

    Catty? I don’t appreciate your sexist and misogynistic language. Pursue your agenda of gender hatred elsewhere.

  7. Alex Bunin

    I am on the NACDL board and I voted for the resolution, but some good lawyers voted against it. They felt their allegiance was to their individual clients and the possibility of disadvantaging them for the broader principle was wrong. I supported it for the reasons you describe.

  8. SHG

    As much as I tend to fall into the client above cause category, ethical prohibition is a line that cannot be crossed. The ethics of a lawyer waiving his own IAC goes a step too far. Glad you voted for it.

  9. Gloria Wolk

    When you look at the huge numbers of coerced confessions, primarily innocent people threatened with the death penalty, the ethics opinion is the only thing on their side.

    Add to that the numbers of judges who decide to nap when a guilty verdict is appealed–as in the Norfolk Four case, where there was no evidence other than their false confessions–and it behooves criminal defense attorneys to stand for the rights of their clients and work harder, if necessary, to convince them the tainted provisions must be deleted.

  10. Thomas R. Griffith

    Sir, when time permits please consider setting me straight on the path to learning just a lil more about the tool used to avoid jury trials to verdict – the “TapOut”.

    Specifically: does the ADA create a Document entitled the Plea Agreement that becomes part of the entire case file. Or, does the Indictment itself become the Document when the defendant is taken into the judge’s chambers and Not Guilty is crossed out with Nolo Contendere / No Contest penned in over it and with a notation that the defendant waived the jury trial and they were let go, all conducted in Open Court. *In the pile of crap the Harris County district clerk’s office sold to me on two separate transactions a couple yrs. apart, there is no Document or the mention of the words – Plea Bargain, Plea Agreement, Offered a Plea, Accepted a Plea, etc… Thanks a million.

  11. SHG

    It works differently in different jurisdictions, some using various documents and other using no docs at all, so it’s not possible to say how it’s done.  As for how it’s done in Harris County, my good pal Bennett would be far more knowledgable than me.  Sorry.

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