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...