The Florida Bar
www.floridabar.org
PROFESSIONAL ETHICS OF THE FLORIDA BAR
OPINION 12-1
(June 22, 2012)

A criminal defense lawyer has 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. A prosecutor may not make an offer that requires the defendant to expressly waive ineffective assistance of counsel and prosecutorial misconduct because the offer creates a conflict of interest for defense counsel and is prejudicial to the administration of justice.
[This opinion was affirmed by the Board of Governors on December 7, 2012.]

RPC: 4-1.7, 4-1.8(h), 4-8.4(d)
Opinions:Alabama Informal Opinion (Unnumbered, dated September 1, 2010); Arizona Ethics Opinion 95-08; Missouri Formal Ethics Opinion 126; National Association of Criminal Defense Counsel Proposed Opinion, 03-02; North Carolina Ethics Opinion 129; Ohio Ethics Opinion 2001-6; Tennessee Informal Ethics Opinion 94-A-549; Texas Ethics Opinion 571; Vermont Ethics Opinion 95-04; Virginia Legal Ethics Opinion 1857


A member of The Florida Bar has requested an opinion regarding the ethical propriety of offering or advising a criminal defendant to accept a plea offer in which the criminal defendant waives past or future ineffective assistance of counsel and prosecutorial misconduct. The committee first notes that whether particular plea agreements are lawful, enforceable and meet constitutional requirements are legal questions outside the scope of an ethics opinion. Reviewing these issues in light of ethics considerations, the committee concludes that both offering and recommending acceptance of such a plea offer is improper.

The majority of states that have examined this issue have concluded that such an offer is impermissible for the criminal defense lawyer, the prosecutor, or both, for varying reasons. Most recently, the Virginia State Bar issued Legal Ethics Opinion 1857 (2011), which opined that a criminal defense lawyer may not ethically advise a criminal defendant to accept a plea that includes waiving the right to make a claim of ineffective assistance of counsel as a personal conflict of interest of the lawyer. The opinion states, “Defense counsel undoubtedly has a personal interest in the issue of whether he has been constitutionally ineffective, and cannot reasonably be expected to provide his client with an objective evaluation of his representation in an ongoing case.” The opinion specifically finds that the agreement does not violate the rule limiting prospective waivers of future malpractice, but states that the prosecutor may not make such an offer as it is “an inducement to the defense lawyer to violate” the ethics rules.

An earlier opinion from Missouri states that it is impermissible for a lawyer to advise a criminal defendant to relinquish claims of ineffective assistance of counsel by that lawyer, because the lawyer cannot properly ask the client to waive this type of personal conflict. Missouri Formal Ethics Opinion 126 (2009). The opinion further indicates that a prosecutor’s request for a waiver of claims of ineffective assistance of counsel and prosecutorial misconduct is inconsistent with the prosecutor’s role and is conduct that is prejudicial to the administration of justice.

Vermont Ethics Opinion 95-04 reaches a similar conclusion as to the criminal defense lawyer, but on a different basis, finding that a criminal defense lawyer should not advise a client to accept a plea offer conditioned on waiver of ineffective assistance of counsel because of Vermont’s prohibition that “a lawyer shall not attempt to exonerate himself from or limit his liability to his client for personal malpractice.” Similarly, Ohio Ethics Opinion 2001-6 opined that a waiver of ineffective assistance of counsel claims equates to a limitation on the criminal defense lawyer’s liability for malpractice, because it “significantly limits and may even destroy the defendant’s ability to establish proximate cause, a necessary element of a legal malpractice claim.” Ohio also reaches the same conclusion as Missouri that a prosecutor may not make such an offer, because a prosecutor should not seek to insulate his or her misconduct with a waiver. Tennessee Informal Ethics Opinion 94-A-549 states that neither a criminal defense lawyer nor a prosecutor may make an agreement to waive ineffective assistance of counsel or prosecutorial misconduct because of the prohibition in the Ethical Canons and Disciplinary Rules against limiting liability for malpractice.

North Carolina Ethics Opinion 129 (1993) opined that a plea offer conditioned on waiver of ineffective assistance of counsel may limit the criminal defendant’s ability to seek a remedy for malpractice and, even if not, that any discipline against the prosecutor or criminal defense lawyer “may be hollow and ineffective remedies for the incarcerated Client C and insufficient to assure compliance with the rules.” The opinion points out the personal conflict for the criminal defense lawyer in advising the client regarding the agreement. Similarly, an Alabama informal opinion (dated September 1, 2010) concluded that an agreement precluding an ineffective assistance of counsel claim may run afoul of the rule prohibiting prospective limitation of malpractice claims based on the inquirer’s statement that the ineffective assistance of counsel claim is “the functional equivalent of a malpractice claim.”

The National Association of Criminal Defense Counsel has published a proposed opinion, 03-02, which indicates that a criminal defense lawyer may not participate in a plea agreement that waives the client’s right to collaterally attack the plea with a claim of ineffective assistance of counsel, because of the personal conflict of interest it presents for criminal defense counsel, and because the waiver limits the lawyer’s malpractice liability, because the criminal defendant in most jurisdictions must make a successful ineffective assistance of counsel claim in order to bring a malpractice claim against the lawyer. The opinion also states that the prosecutor should not make such offers, because the offer is prejudicial to the administration of justice and because it assists or induces the criminal defense lawyer to violate the rules.

Arizona Ethics Opinion 95-08 specifically determined that a plea offer waiving collateral rights, such as a later claim of ineffective assistance of counsel, is not a prospective waiver of malpractice and therefore is not prohibited under the rules. The opinion notes that, not only is ineffective assistance of counsel not a claim of malpractice, the agreement is between the prosecutor and the criminal defendant, not between the criminal defendant and the criminal defense lawyer. The Arizona opinion does not discuss the issue of conflicts of interest. A dissent in the opinion vigorously disagreed with the opinion, indicating that the broad policy behind the rule is to permit clients to later challenge the conduct of their lawyers. The dissent quoted from an earlier opinion of the committee finding the rule prohibited an agreement between lawyer and client that client would not file a bar complaint, stating “agreements such as the one the inquiring attorney proposes involve the very same evils that ER 1.8(h) is designed to prevent; the strong potential of coercion and over-reaching on the attorney’s part, and the potential conflict between the lawyer’s interests and those of his client.”

Texas is the only state, to date, that has specifically addressed the conflict of interest issue and determined that it may be permissible to advise a criminal defense client regarding waiving an ineffective assistance of counsel claim in making the plea. Texas Ethics Opinion 571 (2006) concludes that a criminal defense lawyer may or may not have a conflict of interest when faced with the plea offer from the prosecutor requiring a waiver of ineffective assistance of counsel, and that in order to advise the client regarding the plea offer, the lawyer must reasonably conclude that the representation will not be affected by the lawyer’s personal interests. The opinion states that the lawyer must decide on a case-by-case basis whether the lawyer has a conflict because of concerns that the client may have a basis to raise ineffective assistance of counsel and whether the lawyer is able to make the full disclosure to the client necessary to obtain consent to continued representation. Additionally, the opinion concludes that the applicability of restrictions on waiving malpractice claims will depend on whether the plea agreement is interpreted to limit the criminal defense lawyer’s liability to the defendant for malpractice. Finally, the Texas opinion indicates that the prosecutor may make such a plea offer, although the prosecutor may still be subject to discipline if the prosecutor in fact engages in prosecutorial misconduct.

This Committee agrees with the majority of states that have addressed this issue that it is improper for the prosecutor to make such an offer and for the defense lawyer to advise the client on accepting the offer.

Rule 4-1.8(h) addresses agreements limiting a lawyer’s liability for malpractice and states:


This type of plea agreement is between the prosecutor and the defendant, and an ineffective assistance of counsel claim is not a malpractice claim. Thus, on its face, the rule does not prohibit advising a criminal defense client to enter a plea agreement that waives the client’s right to claim ineffective assistance of counsel in a collateral proceeding. However, a lawyer should not be permitted to do indirectly what the lawyer cannot do directly. A defense lawyer’s recommendation that a client waive a claim of ineffective assistance of counsel is akin to limiting malpractice liability, which is impermissible if the terms of the rule cannot be met.

Unlike malpractice liability, which is a type of conflict that may be waived under specific circumstances with independent representation, the Committee believes that the personal conflict created by such a plea agreement cannot be waived. Rule 4-1.7(a)(2) provides as follows:

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The Committee concludes that a criminal defense lawyer has a personal conflict of interest when advising a client regarding waiving the right to later collateral proceedings regarding ineffective assistance of counsel. The lawyer has a personal interest in not having the lawyer’s own representation of the client determined to be ineffective under constitutional standards. This conflict is not one that the client should be asked to waive as noted in the comment to Rule 4-1.7, which states: “when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent.” A disinterested lawyer would be unlikely to reach the conclusion that the criminal defense lawyer could give objective advice about that lawyer’s own performance.

Regarding the prosecutor’s conduct in offering the plea agreement, the committee agrees with those states that find that the conduct is impermissible as both prejudicial to the administration of justice and assisting the criminal defense lawyer in violating the Rules of Professional Conduct under Rule 4-8.4(d) and 4-8.4(a), Rules Regulating The Florida Bar. The Committee believes that the vast majority of prosecutors act in good faith and would not intentionally commit misconduct. However, some prosecutorial misconduct can occur unintentionally and, in the rare instance, even intentionally. Prosecutorial misconduct may be known only to the prosecutor in question, e.g., when the prosecutor has failed to disclose exculpatory information. The Committee’s opinion is that it is prejudicial to the administration of justice for a prosecutor to require the criminal defendant to waive claims of prosecutorial misconduct when the prosecutor is in the best position, and indeed may be the only person, to be aware that misconduct has taken place.

[Revised: 02-11-2013]