Opinions of the General Counsel
| Publication year | 2011 |
| Pages | 0485 |
| Citation | Vol. 72 No. 6 Pg. 0485 |
J. ANTHONY MCLAIN
Criminal Defendant's Waiver of Ineffective Assistance of Counsel Claims
QUESTION:
May a criminal defendant's lawyer advise a client to enter into a plea agreement that includes a provision requiring the client to waive all ineffective assistance of counsel claims against that lawyer? May a prosecutor include in a plea agreement a provision that would require the defendant to waive all ineffective assistance of counsel claim against the defendant's lawyer?
ANSWER:
Advising a criminal defendant to enter into an agreement prospectively waiving the client's right to bring an ineffective assistance of counsel claim against that lawyer would be a violation of rules 1.7(b) and 1.8(h), Ala. R. Prof. C. Likewise, a prosecutor may not require a criminal defendant to waive such rights as a condition of any plea agreement because such would violate Rule 8.4(a), Ala. R. Prof. C., which prohibits an attorney from "induc(ing) another" to violate the Rules of Professional Conduct.
DISCUSSION:
The Disciplinary Commission has been asked to issue an opinion regarding the ethical propriety of a criminal defense lawyer advising a client on whether to enter into a plea agreement that contains a provision requiring the client to waive the right to later bring an ineffective assistance of counsel claim against that attorney. The flipside to any such question is whether a prosecutor may require the defendant, as a condition of the plea agreement, to waive such rights. As an initial matter, the Disciplinary Commission stresses that this opinion does not address the legality or constitutionality of such waivers. Rather, this opinion deals solely with whether a criminal defense attorney or prosecutor may, under the Alabama Rules of Professional Conduct, participate in obtaining such a waiver.
A number of state bars and state supreme courts have addressed this identical issue and determined that a lawyer may not advise a criminal client as to whether to enter into a plea agreement that includes a provision requiring the defendant to waive a post-conviction right to bring an ineffective assistance of counsel claim against that same lawyer.1 In doing so, those bars and courts have noted that a lawyer may not seek an agreement with a client prospectively limiting his liability for malpractice unless the client is independently represented in making the agreement. This...
To continue reading
Request your trial