95-08: Plea Agreements; Waiver; Malpractice; Ineffective Assistance; Conflict of Interest; Criminal Representation

Prosecutor and defense counsel may enter into a plea agreement waiving future claim of ineffective assistance without prospectively limiting defense counsel's malpractice liability. [ER 1.8]

1) May prosecution and defense counsel enter into a plea agreement that includes a provision whereby the defendant waives post-conviction and collateral rights?

2) More specifically, defense counsel is concerned that defendant's right to later allege ineffective assistance of counsel runs afoul of ER 1.8(h).

(h) A lawyer shall not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement, or settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith.

This opinion does not address legal issues raised by the question except to note that, in Arizona state courts, the question presented does not arise. See, e.g., Montgomery v. Sheldon 183 Ariz. Adv. Rep. 27 (filed February 7, 1995), supplemental opinion, 187 Ariz. Adv. Rep. 3 (filed April 4, 1995) (Rule 32 proceeding is the appeal for a defendant pleading guilty and the right to petition for post-conviction relief may not be waived.)

In federal district court, plea agreements sometimes contain provisions such as:

1. "Defendant hereby waives any right to raise and/or appeal or file any post-conviction writs of habeas corpus concerning any matters pertaining to the prosecution including all motions, defenses, probable cause determinations and objections to the court's entry of judgment against the defendant and imposition of sentence . . .";

2. "Defendant hereby waives any right to raise or collaterally attack any matter pertaining to this prosecution"; and

3. "I am satisfied that my defense attorney has represented me in a competent manner."

Federal plea agreements also sometimes contain provisions that require defense counsel to sign the plea agreement acknowledging that the agreement is in the best interests of the defendant and concurring in the entry of the plea.

Assuming that the waiver provisions cited above waive a defendant's right to later allege ineffective assistance of counsel, several members of the Committee argue that by participating in such a plea agreement, defense counsel violates ER 1.8(h). They reason that: 1) ER 1.8(h) admittedly deals with prospectively limiting a lawyer's liability to a client for malpractice, not to limiting a client's right to seek post-conviction review of his lawyer's assistance; 2) however, defendants in criminal cases are not concerned with monetary damages but with seeking their release; 3) which is analogous to filing a malpractice complaint; and, 4) therefore, ER 1.8(h) applies.

The majority of the Committee declines to adopt such a reading of ER 1.8(h). The rule is specific and unambiguous. In agreeing to the above-cited waiver provisions, a lawyer is not making an agreement prospectively limiting the lawyer's liability to a client for malpractice. We cannot read into the rule something that is not there. There is a significant difference between a defendant's claim that a court should revisit his sentence because of ineffective assistance of counsel and a defendant's claim against his lawyer that the lawyer malpracticed and that the lawyer is therefore personally liable to the client. A criminal defendant may, as part of a plea agreement, waive a claim of ineffective assistance of counsel, without waiving a claim that his lawyer is liable to him for the lawyer's legal malpractice.

Additionally, we note that in the context of a plea agreement, the defense lawyer is not entering into an agreement with his client prospectively limiting the defense lawyer's liability to his client for malpractice. Generally, the government is seeking to put an end to the proceedings as part of the quid pro quo for the plea of guilty to a lesser charge. The government, not the defense lawyer, is requiring the waiver. The situation is not unlike the settlement of a civil case in which mutual waivers and releases are executed. When a lawyer in a civil case counsels his client to sign a settlement agreement releasing all claims made or which could have been made which relate in any way to the litigation, he is not violating ER 1.8(h) because he is not entering into an agreement in which he is prospectively limiting his liability to his client for malpractice.

The dissent argues that Formal Opinion No. 91-23 (September 6, 1991) compels a different result. There, the Committee expressed the opinion that it was unethical for a lawyer, in settling a fee dispute with a client, to condition settlement on the client waiving his right to file a bar complaint against the lawyer, even though ER 1.8(h) did not specifically prohibit such an agreement. However, the result in Opinion No. 91-23 was not based on the view that ER 1.8(h) applied. It was based on the rationale that such agreements involve the very same evils that ER 1.8(h) was designed to prevent "and more importantly" because "agreements limiting an attorney's exposure to disciplinary action have the effect of undermining the Bar's efforts at self-regulation." Op. at 2.

The dissent also takes the majority to task for the "unprecedented departure from the uniform construction of the ethical rules which this Committee has always adopted." That "uniform construction" consists of opinions from the ethics committees of Tennessee and North Carolina, neither of which contain any analysis of the language at issue here -- that of ER 1.8(h). In fact, the North Carolina opinion specifically held that neither the prosecutor nor the defense attorney violated any ethics rules when they entered into a negotiated plea agreement in which the defendant waived all appellate and post-conviction remedies. The North Carolina opinion supports the majority's conclusion.

Again, this opinion does not address legal issues, such as the constitutionality of plea agreements containing provisions like those listed above. This opinion merely answers the inquiring attorney's ethical question in the affirmative. A lawyer may enter into a plea agreement which includes the above-cited waiver provisions without violating ER 1.8(h) or any other ethical rule.

The majority fails to properly articulate the factual basis for the inquiry. It also adopts a crabbed reading of ER 1.8(h), which was specifically eschewed by this Committee in Opinion No. 91-23. The result is to assign to a particular class of clients, namely, criminal defendants in federal court, virtually no right to complain about their lawyer's conduct in the representation. Never before in our experience has the Committee so diluted the ethical rules for a particular class of client. The majority cites no authority for its conclusion. In fact, the only two ethical committees which have addressed this issue have found that agreements in which a defendant waives all appellate and post-conviction rights are contrary to applicable ethical rules. See Tennessee Advisory Ethics Opinion 94-A-549 (1994); North Carolina Ethics Opinion 129 (1993). We dissent from this unprecedented departure from the uniform construction of the ethical rules which this Committee has always adopted.

To being with, the majority fails to address the factual implications of the waiver which it quotes. The actual waiver contained in most plea agreements reads as follows:

Defendant hereby waives any right to raise and/or appeal or file any post-conviction writs of habeas corpus concerning any matters pertaining to the prosecution including all motions, defenses, probable cause determinations and objections to the court's entry of judgment against the defendant and imposition of sentence under Title 18, United States Code, § 3742 (sentence appeals).

The majority only alludes to the waiver of allegations of ineffective assistance which could be made in a petition for writ of habeas corpus. Arguably, the breadth of this waiver could cover much more than that. The waiver of "any right to raise ... any matter pertaining to the prosecution" could be construed to cover civil damage actions for malpractice. While the legal question of the construction of the waiver is beyond the scope of this Committee, the majority's failure to address this issue makes its discussion of ER 1.8(h) incomplete.

The majority completely fails to discuss another provision of the plea agreement which directly addresses the issue of malpractice. The standard plea agreements contain the following under the heading "Waiver of Rights": "I am satisfied that my defense attorney has represented me in a competent manner." While such provision is obviously intended to foreclose claims of ineffective assistance, it also impacts the lawyer's liability for malpractice. Indeed, one court has specifically found a lawyer guilty of an ethical violation for including in an agreement language to the effect that the client was completely satisfied with the lawyer's services. In re Burns, 516 N.E.2d 35 (Ind. 1987).

Moreover, even if the majority were correct that this issue only involves potential claims for ineffective assistance, its conclusion is contrary to the previous opinion of the Committee and all other committee which have addressed the issue.

In Opinion No. 91-23, which the majority cites, this Committee found that it was unethical for a lawyer to condition settlement on the client waiving his right to file a bar complaint. Contrary to the discussion by the majority, this Committee did find ER 1.8(h) applicable. "None of these cases specifically addresses claims other than malpractice claims; therefore, the basis for all these cases could be either ER 1.8(h), or its predecessor, DR 6-106 of the American Bar Association's Code of Professional Responsibility, both of which limit an attorney from limiting its malpractice liability only. However, 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." Opinion No. 91-23 at p.2 (emphasis added).

This Committee's Opinion No. 91-23 was consistent with the preamble of the Model Rules which admonishes lawyers to resolve "ethical issues through the exercise of sensitive professional and moral judgment guided by the basis principles underlying the rules.": (Emphasis added). The majority fails to cite any authority that would support its "strict construction" view of the Model Rules.

Both ethics committees which have addressed this issue have found that neither a prosecutor nor a defense counsel can ethically include a provision in a plea agreement which waives the defendant's right to allege ineffective assistance of counsel or prosecutorial misconduct. See Tennessee Advisory Ethics Opinion 94-A-549, (1994); North Carolina Ethics Opinion 129 (1993). Both opinions address the issue under DR 6-102 of the Code. EC 6-6 stated the policy considerations underlying this portion of the code and those same policy considerations apply to ER 1.8(h).

A lawyer who handles the affairs of his client properly has no need to attempt to limit his liability for his professional activities and one who does not handle the affairs of his client properly should not be permitted to do so.

A majority of this Committee now permits criminal defense lawyers and prosecutors in federal court to violate this policy. While it is obviously in the interest of the prosecutors, defense lawyers and judges to avoid numerous claims of ineffective assistance by disgruntled defendants, the clients are ill-served by the majority's opinion. Criminal defendants should not be singled out for disparate treatment simply because they usually seek habeas corpus relief rather than malpractice damage awards. We dissent.

[1]Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings. ã State Bar of Arizona 1995