The Vermont Bar Association issued an opinion in response to a question from a defense attorney regarding the following provision in a plea agreement from a state's attorney's office:
[T]he Defendant ... hereby understands and agrees to waive all rights to appeal his convictions based on any errors which may have been committed in pre-trial matters, and any collateral matters including, but not limited to, post-conviction relief and habeas corpus which may be available to him in either a state or federal forum. (148) The Vermont Bar concluded that a defendant's waiver of his right to attack ineffective assistance and the prosecutor's conduct in pre-plea and pre-trial proceedings would cause both the defense attorney and the prosecutor to violate the code of ethics forbidding an attorney from limiting his liability for malpractice. (149)
In Virginia's Legal Ethics Opinion 1857, the Committee opined that a criminal defense attorney may not ethically advise a client to accept a plea agreement that includes a waiver of effective assistance of counsel claims. (150) Following the issuance of Lafler and Frye, the Florida Bar issued an opinion by the Board of Governors finding that both criminal defense and prosecuting attorneys have an "unwaivable conflict of interest when advising a client about accepting a plea offer in which the client is required to expressly waive ineffective assistance of counsel and prosecutorial misconduct." (151) The opinion surveyed other states' opinions on the matter and concluded: "[I]t is improper for the prosecutor to make such an offer and for the defense lawyer to advise the client on accepting the offer." (152)
In one of the most recent state bar decisions following Lafler and Frye, the Kentucky Bar Association issued an Advisory Ethics Opinion in November of 2012, holding that a criminal defense attorney has a personal conflict of interest when he advises a client to accept a plea bargain containing a provision barring the client from pursuing a claim of ineffectiveness against the defense attorney. (153) Unlike concurrent conflicts of interest in which an attorney may represent two defendants if she reasonably believes she will be able to be competent and diligent in her representation, "[a] lawyer cannot reasonably believe that he or she can provide competent representation when the lawyer is tasked with advising the client about a plea agreement involving a waiver of the right to pursue a claim of ineffective assistance of counsel ... ." (154) The Committee argued by analogy: if an attorney may not prospectively limit liability for malpractice under Kentucky Rule of Professional Conduct ER 1.8(h), a defense attorney may not prospectively limit liability for ineffective assistance of counsel through a waiver. (155) The Kentucky opinion applied this same reasoning to prohibit a prosecutor from proposing a plea agreement requiring a waiver of effective assistance of counsel, finding it "inconsistent with the prosecutor's role as minister of justice." (156) Requiring a defense attorney to present a plea with a waiver of effective assistance would require the prosecutor to "assist)] or inducfe] another lawyer, defense counsel, to violate" ethical rules. (157) Despite the prevalence of similarly themed ethics opinions in other states, the United States Attorney's Office for the Eastern and Western Districts of Kentucky filed a motion with the Kentucky Supreme Court requesting that it review and vacate Opinion E-435. (158) The Government doubted the Kentucky Bar Association's view that a defense attorney would face a personal conflict of interest by advising her client to waive effective assistance. (159) Instead, "[c]ourts and the government will face more frivolous collateral attacks, defense counsel will face more unwarranted attacks on the effectiveness of their performance, and defendants will lose an important bargaining chip." (160) In response to this motion, the Kentucky Bar Association filed its own brief in support of the opinion in May 2013. (161) The Kentucky Supreme Court affirmed the ethics opinion on August 21, 2014. (162)
While that appeal was pending, two more states (Utah and Pennsylvania) issued ethics opinions on point. Late in 2013, the Utah State Bar addressed the question of defense counsel's conflicts of interest in advising her client to waive any potential ineffective assistance of counsel claims. (163) The Committee noted that under Tenth Circuit law, "[a] claim of ineffective assistance of counsel in connection with the negotiation of a [plea] agreement cannot be barred by the agreement itself." (164) 165 But the Ethics Committee went on to address the waiver's impact on representation after pleading guilty, noting that the lawyer could not intelligently advise the client about "[w]aiver of ineffective assistance in futuro." (165) In what may be the best explanation of the dilemma, the Utah Opinion explained the problem of waiving prospective ineffectiveness:
It is [the] duty of loyalty, heightened for the criminal lawyer by the duty of loyalty under the Sixth Amendment to the United States Constitution, which raises the objectivity factor to a level which, in part, constrains this Committee to opine that an unwaivable conflict arises under RPC 1.7(a)(2).... It shifts the focus from advice about the case and the plea agreement to the attorney-client relationship itself. It demands that the attorney counsel the client that, even though she intends to do a good job in future matters, if she doesn't, the client can do nothing about it.... Obviously, if an attorney were prescient enough to know whether she were going to be ineffective in the future, she would change her course of action. Therein lies the problem. (166) Early in 2014, the Pennsylvania State Bar issued an opinion as well, relying on United States v. DeLuca, (167) a case that occurred two years earlier. In DeLuca, the defendant argued that his waiver should not bar his collateral attack on his lawyer's representation. (168) Instead of relying on legal grounds, DeLuca argued ethics: that his lawyer had been conflicted because he would stand to benefit most from insulating himself from future ineffectiveness claims and that the lawyer's personal interests prevented him from explaining the full scope of the waiver. (169) Although the judge found no ineffectiveness, in what may be first impression, the court considered the impact of the ethics issue on the legal question. (170) The national trend finding that these waivers violate conflicts of interest gave the DeLuca court pause and so it did not adopt the government's position that any conflict was merely speculative. (171) It denied DeLuca's motion nonetheless, as factually there had been no ineffectiveness. (172)
Citing DeLuca, the Pennsylvania ethics opinion addressed the ethics of both prosecution and defense counsel using waivers of ineffective assistance of counsel in plea agreements. (173) It concluded that the defense attorney would be placed in a conflict of interest when advising a client to sign a plea with that waiver language. Moreover, such a conflict is "nonconsentable" because "the lawyer involved cannot reasonably conclude, given his or her personal interest, that the lawyer will be able to provide competent and diligent representation, and therefore cannot seek the client's consent to proceed." (174) Pennsylvania would allow the plea to go forward if an "independent" lawyer advised the client regarding any possible conflict. (175) It also found that the waivers violated ER 1.8 (prohibiting lawyers from limiting their liability in malpractice), reasoning that malpractice claims were the "functional equivalent" of ineffective assistance of counsel claims. (176) Prosecutors requiring those waivers not only engaged in conduct prejudicial to the administration of justice, but also unethically induced defense attorneys to violate conflicts of interest obligations. (177)
In August of 2014, the Kentucky Supreme Court rendered a strong opinion upholding the Kentucky Bar's ethics opinion. (178) It held that waiver of ineffective assistance of counsel provisions created a nonwaivable conflict of interest, limited liability for malpractice (defense attorney violations), and induced defense lawyers to breach those ethical responsibilities (prosecutor violation). As in the Florida ethics litigation, the United States Attorneys pointed to the near-universal federal jurisprudential support of these waivers; however, they alleged the novel constitutional ground that the ethics opinion thus violated the Supremacy Clause. (179) Citing both the McDade Amendment and Attorney General regulations (binding federal prosecutors to state ethics rules), (180) the Court pointedly noted that their ethics opinion did not address defendants' actions, but lawyers' conduct. (181)
Each of the above ethics opinions firmly recognizes the inherent conflict where a defense attorney advises a waiver of effective assistance of counsel in a plea agreement and when the prosecutor seeks such a waiver. Whether intentional or not, these waivers unethically limit future liability for malpractice/ineffectiveness claims.
Only Texas and Arizona have found these waivers are not unethical, but under limited conditions. Arizona's Ethics Committee provided a very narrow answer to an inquiry regarding ER 1.8, the rule prohibiting limiting liability "in malpractice." (182) Importantly, the Arizona Bar never considered nor decided the separate ethics question whether these waivers created conflicts of interest. The answer the Committee gave--which every other state ethics opinion on the same issue disagrees with (183)--was that the waiver language in a plea agreement applies only to collateral attack and not to malpractice, hence the waiver does not violate ER 1.8 (referencing "malpractice"). (184) In a strongly worded dissent, some members of the Arizona Ethics...