Can defense counsel and a prosecutor ethically agree to a plea deal in which the defendant waives all appellate and postconviction rights?

Plain-English summary

Defense counsel represented a client facing serious federal charges. In plea negotiations, the government offered to dismiss all but one charge in exchange for the client's waiver of all appellate and postconviction remedies, with sentencing left to the court under the federal guidelines. The inquiry asked whether defense counsel and the prosecutor could ethically execute such a waiver.

The opinion drew a line. It explained that whether a plea agreement is constitutional and lawful is for the courts, while whether the attorneys' conduct is ethical is addressed concurrently to the courts and the State Bar. As a general proposition, executing a lawful plea agreement does not contravene the Rules of Professional Conduct, and negotiating such an agreement may serve the administration of justice and the defendant's interest, citing Rules 1.2(d) and 7.1(a) and (b). Because a waiver may leave some error unreviewable, defense counsel has a duty under Rule 6(b)(2) to explain the effect and possible consequences of the waiver, including the inability to predict the sentence or the likelihood of a sentencing error, and must then abide by the client's decision under Rule 7.1(c).

The opinion treated waivers of remedies for ineffective assistance of counsel or prosecutorial misconduct differently, deeming them prospectively in conflict with the lawyers' ethical duties. Defense counsel must represent the client zealously and competently, and the prosecutor has special responsibilities in office, citing Rules 6, 7.1, and 7.3. Attorneys are expressly prohibited from making agreements prospectively limiting their malpractice liability under Rule 5.8, and even if such a plea waiver left intact the right to file grievances or sue for malpractice, those remedies could be hollow for an incarcerated defendant. The opinion also observed that an agreement waiving the defendant's right to complain about either lawyer's conduct may appear to serve the lawyers' own interests, in tension with Rule 5.1(b). It concluded that effective enforcement of the rules requires that the attorneys not execute a plea agreement waiving appellate or postconviction remedies based on allegations of ineffective assistance of counsel or prosecutorial misconduct. A footnote noted that, in any direct conflict between the State Bar rules and federal court rules, the federal rules prevail under the supremacy doctrine, while observing that the Rules of Professional Conduct are incorporated into the local rules of the federal district courts in the state.

Currency note

This opinion was issued in 1993, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a plea agreement waive the defendant's appellate and postconviction rights?

A: Generally yes. The opinion held that executing a lawful plea agreement waiving such rights does not, by itself, contravene the Rules of Professional Conduct.

Q: Are there limits on what the waiver can cover?

A: Yes. The opinion held that the attorneys may not execute a waiver of remedies based on ineffective assistance of counsel or prosecutorial misconduct, deeming such waivers in conflict with their ethical duties.

Q: Why are those particular waivers off-limits?

A: The opinion analogized them to the prohibited practice of prospectively limiting malpractice liability under Rule 5.8, and noted that such a waiver may appear to serve the lawyers' own interests in tension with Rule 5.1(b).

Q: What must defense counsel do before the client agrees?

A: The opinion held counsel must explain the effect and possible consequences of the waiver, including the inability to predict the sentence, under Rule 6(b)(2), and then abide by the client's decision under Rule 7.1(c).

Background and rules framework

The opinion applied several North Carolina rules then in force: Rule 1.2(d) (misconduct), Rule 6 and Rule 6(b)(2) on competence and keeping the client informed (corresponding to Model Rules 1.1 and 1.4), Rule 7.1 on diligent representation, Rule 7.3 on the special responsibilities of a public prosecutor (corresponding to Model Rule 3.8), Rule 5.8 barring prospective limits on malpractice liability (corresponding to Model Rule 1.8(h)), and Rule 5.1(b) on conflicts. The analysis turns on treating ineffective-assistance and prosecutorial-misconduct waivers as the functional equivalent of limiting the lawyers' own accountability.

Citations and references

Rules of Professional Conduct:

• MR 1.1 (competence)
• MR 1.4 (communication; explaining matters to the client)
• MR 1.8 (agreements prospectively limiting malpractice liability)
• MR 3.8 (special responsibilities of a prosecutor)
• North Carolina Rules 1.2(d), 5.1(b), 5.8, 6(b)(2), 7.1, 7.3

See also

• NC Ethics Op. RPC 152: disclosure of material terms of plea agreements
• NC Ethics Op. RPC 149: unclaimed client funds; contingent fees in criminal cases

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-129/

Original opinion text

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

Inquiry:

Attorney A represents Client C in regard to several serious federal criminal charges. In the process of plea negotiations, the government, through Government Attorney B, has offered to dismiss all but one of the charges in return for Client C's waiver of all appellate and postconviction remedies. Under the terms of the proposed agreement, the sentencing decision will be made by the court, after acceptance of the plea, in accordance with applicable federal sentencing guidelines.

May Attorney A and Government Attorney B ethically execute a plea agreement in which Client C's rights to appellate and postconviction review are waived?

Opinion:

Yes, except to the extent that the plea agreement purports to waive defendant's rights to appellate and postconviction remedies based on allegations of (a) ineffective assistance of counsel or (b) prosecutorial misconduct.

Whether a plea agreement is constitutional and otherwise lawful is a question to be determined by the courts. Whether the conduct of attorneys with respect to a plea agreement is ethical is a question addressed concurrently to the courts and the State Bar.

As a general proposition, the execution of a lawful plea agreement by North Carolina attorneys does not appear to contravene the Rules of Professional Conduct. Indeed, the negotiation and execution of such an agreement by the prosecutor and defense attorney may well serve the administration of justice and, on balance, be in the best interest of the defendant. Rules 1.2(d) and 7.1(a) and (b).

Attorney A must recognize that, on occasion, waiver of appellate and postconviction rights may result in unreviewable error. Thus, Attorney A has a duty to explain to Client C the effect and possible consequences of the proposed plea agreement (including any inability to predict with confidence the sentence to be imposed or the likelihood of a sentencing error). Rule 6(b)(2). Having done so, Attorney A must abide by the client's decision concerning the plea agreement. Rule 7.1(c).

However, the waiver of rights arising from the ineffective assistance of counsel or prosecutorial misconduct appears to be, and shall prospectively be deemed to be, in conflict with the ethical duties expressed or implied in the rules. Under the rules, Attorney A has an obligation to represent Client C zealously and competently, and Government Attorney B has special responsibilities relating to his conduct in office. Rules 6, 7.1, and 7.3. Attorneys are expressly prohibited from making agreements prospectively limiting their liability for malpractice. Rule 5.8. Even if the plea agreement would not waive Client C's right to assert grievances against Attorney A or Government Attorney B or the right to sue Attorney A for malpractice, those sanctions may be hollow and ineffective remedies for the incarcerated Client C and insufficient to assure compliance with the rules. In the context of a criminal case, a logical and appropriate interpretation of the rules is a prohibition against agreements waiving the clientright to complain about an attorney's incompetent representation or misconduct. Moreover, an agreement waiving the right of Client C to complain about the conduct of either Attorney A or Government Attorney B may have the appearance or effect of serving the lawyer's own interests in contravention of Rule 5.1(b). In any event, the effective enforcement of the rules relating to the responsibilities of Attorney A and Government Attorney B requires that they not execute a plea agreement waiving appellate or postconviction rights or remedies based on allegations of ineffective assistance of counsel or prosecutorial misconduct.

Footnote

• In the case of a direct conflict between the State Bar rules and the rules of the federal court, the latter would prevail under the federal supremacy doctrine. The Rules of Professional Conduct have been adopted and incorporated by reference in the local rules of practice and procedure of the United States District Courts in this state. See Eastern District Rule 2.10, Middle District Rule 505 and Western District Rule l(a).