032917 KSEO, 17-02

Case DateMarch 29, 2017
CourtKansas
No. 17-02
KBA Legal Ethics Opinion No. 17-02
Kansas Ethics Opinions
March 29, 2017
          J. Nick Badgerow, Chairman.          TOPICS: Requesting or agreeing in criminal casesto a waiver of ineffective assistance of counsel claims and prosecutorial misconduct claims.          DIGEST: It is unethical and inappropriate for defense attorneys and prosecutors to request a criminal defendant to waive or release claims (a) that the defense lawyer's assistance was ineffective; or (b) that the prosecutor committed misconduct in the case in which a plea is to be entered.          DATE OF REQUEST: March 15, 2017          REFERENCES: Rules 1.7(a)(2), 1.8(h)(1), 3.8(a) and (b), and 8.4(a) and (d), Kansas Rules of Professional Conduct, Rule 226, Rules of the Kansas Supreme Court (hereinafter "KRPC").          QUESTION: Is it appropriate for a defense attorney or a prosecutor to request a criminal defendant, in negotiating a plea agreement, to waive claims that the defendant received ineffective representation or that the prosecutor has committed prosecutorial misconduct?          ANALYSIS: Courts today find themselves overloaded, under-funded, and burdened with ever-increasing numbers of criminal cases, clogging the justice system with delays. Thus, the criminal justice system has devolved from one of trials and verdicts to one of pleas and agreements.1 As a result, areasonable and effective plea agreement is often the main product of a defense counsel's work, and the main goal of a prosecuting attorney.          Of course, by agreeing to a plea, the criminal defendant must waive his right to a trial.2But, a person charged with a crime who has a constitutional right to counsel, has a right to effective representation by that counsel, even at and before the plea bargaining stage of the proceeding.3 If one enters a plea agreement to resolve the charge, must he also forego his right to claim that the counsel who talked him into the deal missed some point, or that the prosecutor, in forcing the plea, failed to disclose important evidence?          It should be apparent that criminal defendants need effective counsel to guide them through the plea negotiation process and thus, if that counsel is ineffective, should not resulting pleas be subject to attack on that basis?
Effective representation before and during the plea hearing is an indispensable means of ensuring that the waiver of every procedural and substantive constitutional right eliminated by that plea was voluntary and intelligent. Effective assistance waivers and other broad waivers of the right to collaterally attack one's conviction are different in kind than the waiver of the pre-trial and trial rights, themselves. Waivers of pre-trial and trial rights, such as the right to file a suppression motion based on a coerced confession, or the right to have a jury determine factual guilt beyond a reasonable doubt, are acceptable in part because an effective attorney has evaluated a defendant's chances of winning and properly advised the defendant to waive these rights and plead guilty.
If, on the other hand, an attorney provides poor advice, and relying on that, a defendant waives effective assistance, then the defendant will be virtually barred from raising Sixth Amendment effective representation challenges. The defendant is left without a forum for judicial review of the potentially serious constitutional violations, matters that will never be considered because of the attorney's incompetence. Instead, a defendant must retain her right to argue ineffective counsel at the plea stage, a claim that can only be raised by collateral attack, in case the decision to plead guilty (or to reject the plea) turns out to be unjust. Competent counsel would have countermanded that decision, but a waiver of effective assistance and collateral attack ensures the defendant is precluded from raising the issue.4
         Many form plea agreements carve out an exception for ineffective assistance of counsel claims post-conviction.[5] The requester states, however, that "standard plea agreements in federal criminal cases in Kansas . . . frequently include" broad waivers of any right to attack the resulting conviction collaterally, including claims of the ineffective assistance of counsel.6 And such broad and general waivers have been held to include a waiver of the right to claim that counsel's advice, even in connection with the plea, was ineffective.7          Of course, building into a plea agreement a binding waiver of a claim of ineffective assistance of counsel or of prosecutorial misconduct helps to assure closure, and avoids the necessity of reopening the case, arguing in court and defending the defense counsel's or the prosecutor's conduct. And closure, after all, is one of the principal goals of the plea agreement.          On the other hand, a criminal defendant is particularly vulnerable, and - seeing the prospect of a reduced charge or sentence - might well agree to any other term without being independently advised of its effect.          So, given the prevalence of the practice, is it ethical for a defense attorney to request and then induce his client to sign a release of any claim that the...

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