May Missouri defense counsel advise a client to waive ineffective-assistance claims, or may a prosecutor demand that waiver?

Plain-English summary

The committee considered plea agreements requiring a defendant to waive post-conviction relief under Missouri Rule 24.035, including claims that defense counsel had provided ineffective assistance.

Defense counsel had a personal interest in avoiding an ineffective-assistance claim. The committee found a significant risk that this interest would materially limit advice to the client and concluded that counsel could not reasonably provide competent and diligent representation on the effectiveness of counsel's own work. The conflict was therefore not waivable.

A prosecutor's duties as a minister of justice and obligation not to prejudice the administration of justice prohibited seeking waiver of post-conviction rights based on ineffective assistance or prosecutorial misconduct.

The Rules did not prohibit waivers of other post-conviction rights, although the committee left constitutional and other legal validity outside the opinion's scope.

Currency note

Formal Opinion 126 was issued in 2009 under the Missouri rules and post-conviction procedure then in effect. Verify current professional-conduct rules, Rule 24.035, constitutional law, and later authority before relying on the specific waiver analysis.

In practice

Under this opinion, a lawyer could not solve the self-interest conflict through the client's consent. Its holding separately restricted the prosecutor from requesting the identified waivers while leaving other lawful post-conviction waivers outside that prohibition.

Common questions

Q: Why was defense counsel conflicted?

A: Counsel had a personal interest in whether the client later alleged that counsel's representation was ineffective.

Q: Could the client waive that conflict?

A: No. The committee found it unreasonable to believe counsel could give competent and diligent advice about counsel's own effectiveness.

Q: What waivers could a prosecutor not seek?

A: Waivers of post-conviction claims based on ineffective assistance of counsel or prosecutorial misconduct.

Q: Did the opinion prohibit every post-conviction waiver?

A: No. It said other waivers were not prohibited by the ethics rules unless unconstitutional or otherwise unlawful.

Background and rules framework

Rule 4-1.7 governed the defense lawyer's personal-interest conflict and whether it could be waived. Rules 4-3.8 and 4-8.4(d) governed the prosecutor's minister-of-justice role and conduct prejudicial to the administration of justice.

Citations and references

Missouri Rules of Professional Conduct:

• Rules 4-1.7(a)(2) and 4-1.7(b)(1)
• Rule 4-3.8
• Rule 4-8.4(d)

Court rules:

• Missouri Rule 24.035

Other opinions cited:

• North Carolina State Bar RPC 129 (1993)
• Tennessee Advisory Ethics Opinion 94-A-549 (1994)
• Ohio Opinion 2001-6 (2001)

See also

• Nebraska Ethics Op. 73-12: Client's false testimony
• Nebraska Ethics Op. 74-2: Prosecutor as defense counsel
• Alaska Ethics Op. 2006-2: Criminal client instructions

Source

• Landing page: Missouri Formal Opinion 126

Original opinion text

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

Advisory Committee of the Supreme Court of Missouri
Formal Opinion 126

WAIVER OF POST-CONVICTION RELIEF

We have been asked whether it is permissible for defense counsel in a criminal case to advise the defendant regarding waiver of the right to seek post-conviction relief under Rule 24.035, including claims of ineffective assistance by defense counsel. We understand that some prosecuting attorneys have expressed intent to require such a waiver as part of a plea agreement.

It is not permissible for defense counsel to advise the defendant regarding waiver of claims of ineffective assistance of counsel by defense counsel. Providing such advice would violate Rule 4–1.7(a)(2) because there is a significant risk that the representation of the client would be materially limited by the personal interest of defense counsel. Defense counsel is not a party to the post-conviction relief proceeding but defense counsel certainly has a personal interest related to the potential for a claim that defense counsel provided ineffective assistance to the defendant. It is not reasonable to believe that defense counsel will be able to provide competent and diligent representation to the defendant regarding the effectiveness of defense counsel’s representation of the defendant. Therefore, under Rule 4–1.7(b)(1), this conflict is not waivable.

We have also been asked whether it is permissible for a prosecuting attorney to require waiver of all rights under Rule 24.035 when entering into a plea agreement. We believe that it is inconsistent with the prosecutor’s duties as a minister of justice and the duty to refrain from conduct prejudicial to the administration of justice for a prosecutor to seek a waiver of post-conviction rights based on ineffective assistance of counsel or prosecutorial misconduct. See, Rules 4–3.8 and 8.4(d).

We note that at least three other states have issued opinions consistent with our view.1 We do not believe the Rules of Professional Conduct prohibit a defense counsel and prosecutor from entering into a plea agreement that involves waiver of other post-conviction rights, unless such a waiver violates the Constitution or other laws. Analysis of whether it would violate the Constitution or other laws is beyond the scope of this opinion.

May 19, 2009

1 The North Carolina State Bar, RPC 129, January 15, 1993; Board of Professional Responsibility of the Supreme Court of Tennessee Advisory Ethics Opinion 94-A-549, November 30, 1994; Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio, Opinion 2001–6, December 7, 2001.