Can a criminal defense lawyer advise a client to accept a plea deal that waives the right to claim ineffective assistance, and can a prosecutor require it?

Plain-English summary

The hypothetical involves a standard plea provision under which the defendant waives the right to collaterally attack any order in the case, which defense counsel fears would also waive the right to later claim ineffective assistance of counsel. The committee addresses whether a defense lawyer may advise the client to accept the provision and whether the prosecutor may require it. The committee notes that federal courts (U.S. v. Lemaster, 4th Cir. 2005) enforce knowing and voluntary collateral-attack waivers, but that legal enforceability does not resolve the ethics question.

On the defense lawyer, the committee agrees with the majority of states that, to the extent the provision waives the client's right to claim ineffective assistance, the lawyer may not ethically counsel the client to accept it. There is a concurrent conflict under Rule 1.7(a)(2) between the lawyer's personal interest and the client's: the lawyer has a personal stake in whether his own representation was constitutionally effective and cannot objectively evaluate it in an ongoing case. The committee draws on LEO 1122 (lawyer should not argue his own ineffectiveness on appeal), LEO 1558 (lawyer cannot argue he improperly pressured a guilty plea), and LEO 1817, and concludes the conflict cannot be cured by client consent. Counseling the client to bargain away the constitutional right to effective assistance also violates Rule 1.3(c), which bars intentionally prejudicing the client. The committee explains that Virginia's Rule 1.8(h) (no prospective limit on malpractice liability) does not apply here, because the defense lawyer is not making the agreement but advising on one sought by the government.

On the prosecutor, the committee concludes that offering a plea agreement containing a provision intended and effective to waive the right to claim ineffective assistance violates Rule 8.4(a). Because the prosecutor refuses to offer any plea without the provision, he is implicitly requesting that the defense lawyer counsel the client to accept it, which induces the defense lawyer to violate Rules 1.3(c) and 1.7.

In practice

Under the Virginia rules as they stood when the opinion issued, a defense lawyer may not advise a client to accept a plea provision that operates to waive the right to claim ineffective assistance of counsel. The opinion holds that this presents a concurrent conflict under Rule 1.7(a)(2) that cannot be cured by client consent, because the lawyer cannot objectively evaluate his own effectiveness, and that counseling the waiver also violates Rule 1.3(c). The opinion holds that Rule 1.8(h) does not apply, because the defense lawyer is advising on, not making, the agreement. The opinion holds that a prosecutor who offers a plea agreement requiring such a waiver violates Rule 8.4(a) by inducing the defense lawyer to violate Rules 1.3(c) and 1.7.

Common questions

Q: Can I advise my client to accept a plea deal that waives ineffective-assistance claims?

A: No. The opinion concludes that, to the extent the provision waives the right to claim ineffective assistance, counseling the client to accept it presents a non-waivable conflict under Rule 1.7(a)(2) and violates Rule 1.3(c), because you cannot objectively assess your own effectiveness.

Q: Does Virginia's Rule 1.8(h) on malpractice waivers control this?

A: No. The opinion concludes Rule 1.8(h) does not apply, because the defense lawyer is not making the agreement limiting his own liability; he is advising the client whether to enter an agreement sought by the government.

Q: Can a prosecutor require an ineffective-assistance waiver in every plea agreement?

A: No. The opinion concludes that offering a plea agreement requiring such a waiver violates Rule 8.4(a), because it induces the defense lawyer to violate Rules 1.3(c) and 1.7.

Background and rules framework

The opinion interprets Rule 1.7(a)(2) of the Virginia Rules of Professional Conduct (Model Rule 1.7), the concurrent-conflict rule as applied to a lawyer's personal interest in his own competence, and Rule 1.3(c) (a Virginia-specific provision barring intentional prejudice to the client). It distinguishes Rule 1.8(h) (Model Rule 1.8(h), prospective malpractice waivers) and applies Rule 8.4(a) (Model Rule 8.4(a)) to the prosecutor who induces the violation. The committee relies on LEOs 1122, 1558, and 1817 for the conflict analysis.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7(a)(2) / Va. Rule 1.7(a)(2) (concurrent conflict; personal interest)
• Va. Rule 1.3(c) (no intentional prejudice to the client)
• Model Rule 1.8(h) / Va. Rule 1.8(h) (prospective limits on malpractice liability)
• Model Rule 8.4(a) / Va. Rule 8.4(a) (inducing another to violate the rules)

Cases:

• United States v. Lemaster, 403 F.3d 216 (4th Cir. 2005), knowing and voluntary collateral-attack waivers are enforceable

Other opinions cited:

• Va. LEOs 1122, 1558, 1817: a lawyer cannot objectively litigate his own ineffectiveness; the conflict is not consentable

See also

• VSB Ethics Op. 1862: Prosecutor's Timely Disclosure and Plea Negotiations
• VSB Ethics Op. 1859: Confidences After an Ineffective-Assistance Claim

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1857.pdf

Original opinion text

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

LEGAL ETHICS OPINION 1857

MAY A PROSECUTOR OFFER, AND MAY A
CRIMINAL DEFENSE LAWYER ADVISE HIS
CLIENT TO ACCEPT, A PLEA AGREEMENT THAT
REQUIRES A WAIVER OF THE RIGHT TO LATER
CLAIM INEFFECTIVE ASSISTANCE OF
COUNSEL?

In this hypothetical, a defense lawyer represents a client who intends to plead guilty. The
plea agreement provides that “I waive any right I may have to collaterally attack, in any future
proceeding, any order issued in this matter and agree I will not file any document which seeks to
disturb any such order. I agree and understand that if I file any court document seeking to
disturb, in any way, any order imposed in my case, such action shall constitute a failure to
comply with a provision of this agreement.” This provision is standard in all plea agreements
offered by the prosecutor’s office, however, defense counsel has concerns that this provision
may have the legal effect of waiving the client’s right to later claim ineffective assistance of
counsel. The defense lawyer asks whether he can ethically advise his client as to whether to
waive that right and whether the prosecutor can ethically require this waiver as a term of a plea
agreement.
QUESTIONS PRESENTED
1.

May a defense lawyer advise a client to enter into a plea agreement with language
that may effectively waive the right to allege ineffective assistance of counsel as part
of a waiver of the right to collaterally attack a conviction covered by a plea
agreement?

2.

If the defendant’s lawyer declines to advise him on the issue, does the prosecutor’s
suggestion that the defendant agree to the provision knowingly take advantage of an
unrepresented defendant?

APPLICABLE RULES AND OPINIONS
The applicable Rules of Professional Conduct are Rule 1.3(c)1, Rule 1.7(a)(2)2, Rule
1.8(h) , and Rule 8.4(a)4. Additionally, Legal Ethics Opinions 1122, 1558, and 1817 are relevant
to the conflict of interest analysis.
3

1

Rule 1.3 Diligence

(c) A lawyer shall not intentionally prejudice or damage a client during the course of the professional
relationship, except as required or permitted under Rule 1.6 and Rule 3.3.

2

Rule 1.7 Conflict of Interest: General Rule
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves
a concurrent conflict of interest. A concurrent conflict of interest exists if:

(2) there is significant risk that the representation of one 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.

3

Rule 1.8 Conflict of Interest: Prohibited Transactions

(h) A lawyer shall not make an agreement prospectively limiting the lawyer’s liability to the client for
malpractice.

4
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:

LEO 1857
Page 2
ANALYSIS
Federal courts have consistently held that such a provision is legally enforceable against
the defendant. In U.S. v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005), the court held that there is
no reason to distinguish between a waiver of direct appeal rights and a waiver of collateral attack
rights, and therefore a waiver of all collateral attack rights is valid so long as the waiver is
knowing and voluntary. In general, a defense lawyer may counsel a client to enter into a lawful
plea agreement; however, in this case, the content of the plea agreement raises ethical concerns,
to the extent that the language of the plea agreement has the intent and effect of waiving the
client’s right to claim ineffective assistance of counsel.
Though they are not in full agreement on the rationale for their opinions, several states
have found that it is unethical for a defense lawyer to advise his client to accept such a plea
bargain provision, and that it is unethical for a prosecutor to propose such a provision.5 Only one
state has found such a provision ethically permissible, on the grounds that Rule 1.8(h) applies
exclusively to waivers of malpractice liability.6
Defense lawyer’s duties
The Committee agrees with the majority of states that have considered this issue that, to
the extent that a plea agreement provision operates as a waiver of the client’s right to claim
ineffective assistance of counsel, a defense lawyer may not ethically counsel his client to accept
that provision. There is a concurrent conflict of interest as defined by Rule 1.7(a)(2) between the
lawyer’s personal interests and the interests of the client. 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. This conflict was discussed in LEO 1122, which concluded that a lawyer
should not represent a client on appeal when the issue is the lawyer’s own ineffective assistance
because “he would have to assert a position which would expose him to personal liability.”
Likewise, LEO 1558 concluded that a lawyer could not argue that he had improperly pressured
his client into accepting a guilty plea, because of the conflict between the interests of the client
and the lawyer’s interest in protecting himself. Further, both conflicts cannot be cured even with
client consent. LEO 1817 recently reaffirmed the accuracy of this conflict of interest analysis.
A defense lawyer who counsels his client to agree to this provision also violates Rule
1.3(c). The client has a constitutional right to the effective assistance of counsel and the defense
lawyer’s recommendation to bargain that right away prejudices the client.
Although other states have interpreted their versions of Rule 1.8(h) to bar the defense
lawyer from advising his client on this issue,7 Virginia’s Rule 1.8(h) does not apply in this
situation because the defense lawyer is not making the agreement in this case – he is advising his
client whether to enter into an agreement sought by the government.

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to
do so, or do so through the acts of another;

5
Advisory Committee of the Supreme Court of Missouri, Formal Opinion 126 (2009); The North Carolina State Bar
Ethics Commission, Formal Opinion RPC 129 (1993); Board of Commissioners on Grievances and Discipline of the
Supreme Court of Ohio, Opinion 2001-6 (2001); Vermont Bar Association, Advisory Ethics Opinion 95-04 (1995).
6

State Bar of Arizona Commission on the Rules of Professional Conduct, Opinion 95-08 (1995).
The North Carolina State Bar Ethics Commission, Formal Opinion RPC 129 (1993); Board of Commissioners on
Grievances and Discipline of the Supreme Court of Ohio, Opinion 2001-6 (2001); Vermont Bar Association,
Advisory Ethics Opinion 95-04 (1995).

7

LEO 1857
Page 3
Prosecutor’s duties
Your second question presented addresses the prosecutor’s role in seeking this waiver.
The Committee is of the opinion that it is a violation of Rule 8.4(a) for the prosecutor to offer a
plea agreement containing a provision that has the intent and legal effect of waiving the
defendant’s right to claim ineffective assistance of counsel. Because the prosecutor refuses to
offer a plea agreement that does not include this provision, he is implicitly requesting that the
defense lawyer counsel his client to accept this provision, which is an inducement to the defense
lawyer to violate Rules 1.3(c) and 1.7.
This opinion is advisory only based upon the facts as presented, and not binding on any
court or tribunal.
Committee Opinion
July 21, 2011