Widening the Scope of the Administration of Justice: IAC Waivers in Plea Bargains

On June 10, 2016, the New York State Bar Association issued Opinion 1098, which prohibits prosecutors from ethically requiring that defendants waive ineffective assistance of counsel (“IAC”) claims as a condition in plea bargains. The New York State Bar Association’s ethics committee highlighted different issues surrounding IAC waivers of plea bargains—many of which affect not only criminal defendants, but also prosecutors, defense counsel, and the courts.

New York’s Rules of Professional Conduct Rule 8.4(d), identical to the American Bar Association’s Rule 8.4(d) denotes professional misconduct as when a lawyer “engage[s] in conduct that is prejudicial to the administration of justice.” New York maintains that a violation of 8.4(d) can occur even in good faith: “[I]f the conduct in question is likely to cause substantial individual or systemic harm to the administration of justice, regardless of the motivation of the party, we have interpreted Rule 8.4(d) to apply.”

The ethics committee affirms that prosecutors violate 8.4(d) by requiring IAC waivers because doing so creates an obvious conflict of interest for defense lawyers. More significantly, however, defense attorneys may fear that raising this conflict of interest issue may result in losing a valuable plea deal for their clients. Thus, defense lawyers are forced to decide between ignoring ethical obligations and working in the best interest of their clients.

Moreover, IAC waiver conditions in plea deals unduly burden the courts. If a defense lawyer asserts a conflict of interest that is not waivable, the lawyer must move to withdraw. The court then has to expend resources to determine whether the conflict of interest exists, conduct a balancing test, and possibly provide substitute counsel. The court could also decline the motion to withdraw; in that case, the defense lawyer must proceed despite an identified, personal conflict of interest. However, if defense counsel identifies a conflict of interest, but contends that it is waivable, the court must then investigate whether the defendant made a “knowing, intelligent, and voluntary” waiver.

Finally, IAC waivers undermine criminal defendants’ Sixth Amendment rights and chances for malpractice litigation. Plea deals preclude defendants from seeking civil recourse for lawyer malfeasance. As a result, criminal defendants have few avenues for malpractice litigation, and even if they do manage to show malpractice, nonpecuniary damages are not available.

This opinion reflects a growing trend because other states have associated the requirement of IAC waivers in plea deals with harming the administration of justice. Florida, Ohio, and Arizona established that IAC waivers are a per se violation of Rule 8.4(d). Nevertheless, New York allows a case-by-case evaluation regarding IAC waivers in plea deals: “[A] defendant who has been advised by an independent lawyer may waive an identified instance of ineffectiveness.” This emerging trend seems to reflect a wider reach to protect the “administration of justice.”

For the full opinion, click here.


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