Could a Vermont defense lawyer recommend a plea agreement waiving later ineffective-assistance claims?
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This page answers the general question as of 1995. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A state's attorney's office proposed plea language waiving appeals and collateral proceedings, including post-conviction relief and habeas corpus. The defense lawyer asked whether recommending that provision to a client complied with the former Code. The waiver could bar later challenges based on ineffective defense assistance or prosecutorial misconduct.
The committee applied former DR 6-102(A), which prohibited a lawyer from attempting to exonerate or limit personal malpractice liability to a client. It reasoned that the waiver could prevent the client from challenging defense counsel's work. The committee concluded that defense counsel should not recommend a plea agreement limiting the client's right to bring an ineffective-assistance claim in a post-conviction proceeding.
Currency note
This opinion was issued in 1995, before Vermont's 1999 adoption of 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 Treat this page as historical context, not current guidance.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.
Common questions
Q: Did the committee reject every plea agreement?
A: No. It said a lawful plea agreement generally did not contravene the former Code; its concern was the provision cutting off challenges to counsel's representation.
Q: Why did the defense lawyer have a personal ethical concern?
A: Waiving an ineffective-assistance claim could limit the lawyer's own malpractice exposure, contrary to former DR 6-102(A).
Background and rules framework
The opinion applied former Vermont DR 6-102(A) to defense counsel's proposed recommendation. The sample waiver also mentioned V.R.A.P.3(b), but the committee's ethical holding addressed waiver of post-conviction ineffective-assistance claims.
Citations and references
Former Vermont disciplinary rules:
- DR 6-102(A).
Other authorities cited:
- V.R.A.P.3(b).
See also
Source
- Landing page: VBA plea-bargain opinions
- Original PDF: Vermont Advisory Opinion 95-04
- Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”
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