Can a Florida criminal defense lawyer advise a client to accept a plea that waives ineffective-assistance-of-counsel and prosecutorial-misconduct claims?

Plain-English summary

A member asked whether it is proper to offer, or to advise a defendant to accept, a plea that waives past or future ineffective assistance of counsel and prosecutorial misconduct. The committee first notes that whether such plea agreements are lawful, enforceable, and constitutional are legal questions outside the scope of an ethics opinion, then concludes that both offering and recommending acceptance of such an offer is improper.

The opinion surveys other states. Most that have examined the issue found the offer impermissible for the defense lawyer, the prosecutor, or both. Virginia LEO 1857 (2011) treated the defense lawyer's advice as a personal conflict, reasoning that counsel has a personal interest in whether he was constitutionally ineffective and cannot objectively evaluate his own representation, and that the prosecutor may not make an offer that induces the defense lawyer to violate the rules. Missouri, Ohio, Tennessee, North Carolina, and an Alabama informal opinion, and the NACDL proposed opinion, reached similar conclusions, variously grounding them in the personal conflict, the bar on limiting malpractice liability, or conduct prejudicial to the administration of justice. Arizona (95-08) found such a waiver was not a prospective malpractice waiver and did not discuss conflicts, and Texas (571) was the only state to find it may be permissible to advise on the waiver on a case-by-case conflict analysis and to allow the prosecutor to make the offer.

The committee agrees with the majority. On Rule 4-1.8(h), it reasons that because the agreement is between prosecutor and defendant and an ineffective-assistance claim is not a malpractice claim, the rule does not on its face bar advising the waiver, but a lawyer should not do indirectly what the lawyer cannot do directly, and the recommendation is akin to limiting malpractice liability. Unlike a waivable malpractice conflict, the committee concludes the personal conflict created by such a plea cannot be waived: under Rule 4-1.7(a)(2) the lawyer has a personal interest in not having his own representation found ineffective, and a disinterested lawyer would be unlikely to conclude the lawyer could give objective advice about his own performance, so the client should not be asked to consent. As to the prosecutor, the committee finds the conduct impermissible under Rule 4-8.4(d) and 4-8.4(a) as both prejudicial to the administration of justice and assisting the defense lawyer in violating the rules, reasoning that the prosecutor may be the only person aware that misconduct, such as a failure to disclose exculpatory information, has occurred.

In practice

Under the Florida rules as they stood at the time of this 2012 opinion (affirmed by the Board of Governors December 7, 2012), it is improper both for a prosecutor to make, and for a defense lawyer to advise accepting, a plea that requires waiving ineffective assistance of counsel and prosecutorial misconduct. The opinion makes the controlling factor for the defense lawyer the personal conflict under Rule 4-1.7(a)(2): the lawyer's interest in not being found ineffective, which the committee treats as unwaivable because a disinterested lawyer would be unlikely to conclude objective advice was possible. For the prosecutor, the controlling grounds are Rule 4-8.4(d) and (a), conduct prejudicial to the administration of justice and assisting a rule violation. The committee expressly treats the lawfulness, enforceability, and constitutionality of such agreements as legal questions beyond the opinion's scope.

Common questions

Q: Can a Florida defense lawyer recommend a plea that waives ineffective-assistance claims?

A: No. The opinion concludes the defense lawyer has an unwaivable personal conflict of interest in advising on such a plea, because the lawyer has a personal interest in not having his own representation found ineffective.

Q: Why is the conflict unwaivable?

A: Per the opinion, under Rule 4-1.7(a)(2) a disinterested lawyer would be unlikely to conclude the lawyer could give objective advice about the lawyer's own performance, so the client cannot properly be asked to consent.

Q: Can a prosecutor make such an offer?

A: No. The opinion concludes the prosecutor's conduct is impermissible under Rule 4-8.4(d) and (a) as prejudicial to the administration of justice and as assisting the defense lawyer in violating the rules.

Q: Does the malpractice-limitation rule, 4-1.8(h), directly prohibit this?

A: Not on its face. The opinion reasons that because the agreement is between the prosecutor and the defendant and an ineffective-assistance claim is not a malpractice claim, Rule 4-1.8(h) does not directly bar the advice, but a lawyer should not do indirectly what cannot be done directly.

Background and rules framework

The opinion interprets Rule 4-1.7 (conflict of interest, current clients, Model Rule 1.7), Rule 4-1.8(h) (limiting liability for malpractice, Model Rule 1.8(h)), and Rule 4-8.4(a) and (d) (misconduct, Model Rule 8.4) of the Rules Regulating The Florida Bar. It surveys numerous out-of-state ethics opinions reaching the same or differing conclusions.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / Fla. Rule 4-1.7(a)(2) (personal-interest conflict)
• Model Rule 1.8(h) / Fla. Rule 4-1.8(h) (limiting liability for malpractice)
• Model Rule 8.4 / Fla. Rule 4-8.4(a), (d) (assisting a violation; conduct prejudicial to the administration of justice)

Other opinions cited:

• Virginia LEO 1857 (2011); Missouri Formal Op. 126 (2009); Ohio Op. 2001-6; Tennessee Informal Op. 94-A-549; North Carolina Op. 129 (1993); Arizona Op. 95-08; Texas Op. 571 (2006); Vermont Op. 95-04; Alabama Informal Op. (Sept. 1, 2010); NACDL Proposed Op. 03-02

See also

• Florida Bar Op. 16-2: Client Financing of Legal Fees
• Florida Bar Op. 18-2: Interest on Advanced Contingent Costs

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-12-1/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-12-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 12-1
June 22, 2012
Advisory ethics opinions are not binding.
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

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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

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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:
(h) Limiting Liability for Malpractice. 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. A lawyer shall not 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 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.

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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:
(a) Representing Adverse Interests. Except as provided in subdivision (b),
a lawyer shall not represent a client if:

(2) there is a substantial risk that the representation of 1 or more clients
will be materially limited by the lawyer’s responsibilities to another client, a
former client or a third person or by a personal interest of the lawyer.
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.