State Bar of Arizona Ethics Opinions

15-01: Plea Agreements; Waiver; Ineffective Assistance; Conflict of Interest; Criminal Representation
6/2015

The conflict-of-interest rules prohibit a defense attorney from advising a criminal defendant to waive the defendant’s right to raise that attorney’s ineffective assistance of counsel. The ethical rules also prohibit a prosecutor from insisting that a defendant waive the right to raise ineffective assistance of counsel and prosecutorial misconduct claims. Opinion 95-08 is accordingly withdrawn.



FACTS

The Arizona Rules of Professional Conduct apply not only to state prosecutors but also to federal prosecutors practicing in Arizona.[1] As a condition of their plea offers, certain prosecutors have required defendants to waive all post-conviction judicial review. The exact language of these waivers has varied over the years and will undoubtedly continue to vary in the future. As a common example, a typical federal waiver required that the defendant give up any right to raise any claim on appeal or in a habeas corpus petition.[2] The defendant also generally has to acknowledge in the signed plea agreement that the defendant is “satisfied” that defense counsel has acted in a “competent manner” and has “carefully reviewed every part of” the plea agreement with the defendant. The defense attorney generally must then approve and sign the agreement, representing (1) that the attorney has discussed with the defendant the plea agreement, the defendant’s constitutional and other rights, and the consequences of the guilty plea and (2) that the attorney agrees that the terms of the agreement “are in the best interests of my client.”[3]

Because such waivers do not except claims arising from the defense attorney’s own ineffective assistance of counsel or the prosecutor’s own misconduct, the waivers thus attempt to eliminate defendants’ rights to raise ineffective assistance of counsel and prosecutorial misconduct claims (among other claims) on appeal or in post-conviction relief proceedings. Although the Arizona state courts generally do not enforce these broad waivers,[4] the United States District Court for the District of Arizona and United States Court of Appeals for the Ninth Circuit generally do enforce them.[5] While federal prosecutors have recently revised their internal policy and are not currently requiring defendants to waive their right to raise ineffective assistance of counsel claims,[6] the policy does not address the ethical implications of the waivers described above and does not address waivers of prosecutorial misconduct claims.[7]  

ISSUES PRESENTED

I.    Whether a defense attorney may ethically advise the client to enter a plea agreement waiving the client’s right to seek post-conviction judicial relief from the attorney’s ineffective assistance of counsel.

II.  Whether a prosecutor may ethically condition a plea offer on the defendant’s and defense attorney’s agreement that the defendant waive the right to seek post-conviction judicial relief from the defense attorney’s ineffective assistance of counsel and the prosecutor’s misconduct. 

RELEVANT ETHICAL RULES

 ER 1.1 Competence

A lawyer shall provide competent representation to a client.  Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

ER 1.4 Communication

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in ER 1.0(e), is required by these Rules;

* * *

(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

(c) In a criminal case, a lawyer shall promptly inform a client of all proffered plea agreements.

 ER 1.7 Conflict of Interest: Current Clients

 (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:

 (1) the representation of one client will be directly adverse to another client; or

 (2) there is a 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.

 (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if each affected client gives informed consent, confirmed in writing, and:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law; and

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.

 ER 2.1 Advisor

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.. . .

 ER 3.8 Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:

* * *

(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

* * *

COMMENT

[1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons.

* * *

ER 8.4 Misconduct

It is professional misconduct for a lawyer to:

 (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;

* * *

(d)   engage in conduct that is prejudicial to the administration of justice;

* * *

RELEVANT ETHICS OPINIONS

Ariz. Ethics Ops. 95-08 and 91-23; Ala. Ethics Op. 2011-02; Fla. Ethics Op. 12-1 (2012); Ky. Ethics Op. E-435 (2012); Mo. Ethics Op. 126 (2009); Nev. Ethics Op. 48 (2011); N.C. Ethics Op. 129 (1993); Ohio Ethics Op. 2001-6; Penn. Ethics Op. 2014-100; Texas Ethics Op. 571 (2006); Utah Ethics Op. 13-04 (2013); Va. Ethics Op. 1857 (2011); Vt. Ethics Op. 95-04 (1995). 

OPINION

In our Opinion 95-08, we offered one of the first ethics opinions on the following question: whether defense attorneys violate ER 1.8(h)[8] by recommending that defendants enter plea bargains in which the defendants agree to waive their right to pursue an ineffective assistance of counsel claim. Over a strong dissent, we concluded that defense attorneys did not violate ER 1.8(h) by recommending such waivers. That opinion did not, however, examine the conflicts of interest inherent in these waivers. Having since examined both the conflicts of interest and the subsequent ethics opinions from other jurisdictions on this issue, we hereby withdraw Opinion 95-08. As explained below, it is impermissible for defense attorneys to advise, and for prosecutors to insist, that defendants prospectively waive the right to challenge the professional conduct of those same defense attorneys and prosecutors.

I.    A Defense Attorney May Not Advise the Client to Waive Claims of Ineffective Assistance of Counsel Because Such Advice Involves an Unwaivable Conflict of Interest.

The waiver at issue presents an unwaivable conflict of interest for defense attorneys.  A conflict exists whenever “there is a significant risk that the representation . . . will be materially limited by . . . a personal interest of the lawyer.”  ER 1.7(a)(2); ER 1.7 cmt. [8] (“Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests.”). The waiver wedges defense attorneys between the proverbial rock and a hard place: The attorneys must objectively and competently advise the client about the plea agreement and its provisions, yet the attorneys cannot be fully objective about challenges to the quality of their own representation, which they have an interest in avoiding or mitigating. See ER 1.4(c); ER 1.7(a)(2); ER 2.1 (requiring attorneys to “exercise independent professional judgment and render candid advice”). 

Indeed, the conflict created is quite formidable.  Successful ineffective-assistance-of-counsel challenges often (1) jeopardize the attorneys’ future employment (whether as a public defender or panel attorney), (2) harm the attorneys’ professional reputation, (3) serve as a prelude to professional discipline, and (4) serve as a predicate to the clients’ later malpractice claims. Moreover, because these attorneys must advise the defendants to waive ineffective assistance claims arising from sentencing and other proceedings yet to occur, the attorneys cannot adequately discharge their duty to communicate sufficient information to enable the clients to enter informed waivers.  See, e.g., ER 1.4(b) (“A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”); ER 1.7 cmt. [21] (“If the consent is general and open-ended, then the consent ordinarily will be ineffective, because it is not reasonably likely that the client will have understood the material risks involved.”).

In light of defense attorneys’ adverse interests, inability to communicate sufficient information to secure informed consent, and diminished ability to render objective advice when advising on their own performance, the resulting conflict of interest is not waivable; in other words, defense attorneys cannot “reasonably believe” that they “will be able to provide competent and diligent representation to each affected client.” ER 1.7(b)(1). As the comment notes, moreover, “if the probity of a lawyer’s own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice.” ER 1.7 cmt. [1]; ER 2.1. Therefore, defense attorneys cannot ethically advise their clients to enter a plea agreement that purports to waive their clients’ right to raise the attorneys’ ineffective assistance of counsel. This conclusion, of course, would not ordinarily apply to waivers on which the clients receive independent representation.[9] 

II. A Prosecutor May Not Ethically Condition a Plea Offer on the Defendant’s Waiver of Ineffective Assistance of Counsel and Prosecutorial Misconduct Claims.

A.  Ineffective Assistance of Counsel Waivers

Except to the extent noted below, it is likewise impermissible for prosecutors to condition plea offers on defendants’ waiver of ineffective assistance of counsel claims. Lawyers may not “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.” ER 8.4(a). By requiring defense counsel to participate in these waivers, prosecutors induce defense counsel to violate ER 1.7 (and, depending on the facts, ERs 1.1, 1.4, and 2.1).[10] Moreover, requiring these waivers from defendants who are not independently represented is detrimental to criminal defendants’ right to counsel.[11]

This problem is further aggravated because the waivers require defendants to waive claims that arise after the plea agreement.[12] Because such waivers require defendants to proceed with materially conflicted representation, prosecutors would be effectively compelling defendants to proceed without counsel during critical stages of the proceeding.[13] This conduct is inconsistent with ERs 3.8(c) and 8.4(d), which prohibit prosecutors from obtaining from an unrepresented defendant “a waiver of important pretrial rights” and from engaging in conduct “prejudicial to the administration of justice.” See, e.g., Fla. Ethics Op. 12-1 (2012); Mo. Ethics Op. 126 (2009) (“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.”). Thus, prosecutors may not require blanket waivers of ineffective assistance of counsel claims. 

B.  Prosecutorial Misconduct Waivers

Requiring defendants to waive their right to raise a prospective claim of prosecutorial misconduct is inconsistent with prosecutors’ role as a “minister of justice” and is “prejudicial to the administration of justice.” ER 3.8 cmt. [1]; ER 8.4(d). Prosecutorial misconduct includes (but is not necessarily limited to) destroying evidence, suborning perjury, and knowingly failing to turn over exculpatory evidence.[14] “A prosecutor does not serve justice by attempting to shield his or her past or future misconduct from scrutiny by obtaining a criminal defendant’s waiver of appellate or postconviction claims based on allegations of prosecutorial misconduct.” Ohio Ethics Op. 2001-6; cf. ER 3.8(d) (requiring timely disclosure to defendants of all exculpatory and mitigating information).[15] We note also that, as with defense attorneys, prosecutors can suffer from parallel conflicts of interest when they require defendants to waive their right to challenge those prosecutors’ professional conduct; prosecutors should generally avoid circumstances in which their personal interests risk materially limiting their representation.[16] 

In sum, it is generally detrimental to a self-regulated profession for a group of attorneys, even unintentionally, to place their possible misconduct beyond judicial review.[17] Consequently, prosecutors should not attempt to extract waivers of defendants’ right to raise prosecutorial misconduct.[18] See ER 1.7(a)(2); ER 3.8 cmt. [1]; ER 8.4(d); ABA Standards for Criminal Justice, Standard 3-5.8(b) (2015) (prohibiting such waivers); Fl. Ethics Op. 12-01 (2012); Mo. Ethics Op. 126 (2009); N.C. Ethics Op. 129 (1993); Ohio Ethics Op. 2001-6. Consistent with the ABA, however, this opinion does not prohibit waivers “based upon past instances of [prosecutorial] misconduct that are specifically identified in the plea or sentencing agreement or transcript of the proceedings.”[19]

 CONCLUSION

It is unethical for a defense attorney to recommend and approve, and for a prosecutor to insist on, a criminal defendant’s waiver of the right to seek review on the basis of either ineffective assistance of counsel or prosecutorial misconduct. Opinion 95-08 is accordingly withdrawn. We reiterate in closing that this opinion does not address (1) waivers of prosecutorial misconduct claims based upon past instancesofsuch conduct that are specifically identified in the plea or sentencing agreement or transcript of the proceedings and (2) waivers of ineffective assistance of counsel claims specifically identified and on which defendants receive independent representation.

Finally, we note that the interpretation of the Ethical Rules as applied to these waivers has evolved and that our previous Opinion 95-08 created confusion. This opinion should thus be read prospectively, not retroactively.



[1] Regardless of their state of licensure, federal prosecutors in Arizona generally must follow the Arizona Rules of Professional Conduct. See, e.g., LRCiv 83.2(e) (“The ‘Rules of Professional Conduct,’ in the Rules of the Supreme Court of the State of Arizona, shall apply to attorneys admitted or otherwise authorized to practice before the United States District Court for the District of Arizona.”); LRCrim 57.13 (stating that Rule 83.2(e) governs attorneys in criminal practice); see also 28 U.S.C. § 530B(a) (2006) (“An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.”); Ariz. R. Sup. Ct. 31(a) (“Any person or entity engaged in the practice of law or unauthorized practice of law in this state, as defined by these rules, is subject to this court’s jurisdiction.”); ER 8.5(a) (“A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction.”).

[2] For example, defendants have often had to waive:

any right to file an appeal, any collateral attack, and any other writ or motion that challenges the conviction, an order of restitution or forfeiture, the entry of judgment against the defendant, or any aspect of the defendant's sentence, including the manner in which the sentence is determined, including but not limited to any appeals under 18 U.S.C. § 3742 (sentencing appeals) and motions under 28 U.S.C. §§ 2241 and 2255 (habeas petitions), and any right to file a motion for modification of sentence. . . . The defendant acknowledges that this waiver shall result in the dismissal of any appeal, collateral attack, or other motion the defendant might file challenging the conviction, order of restitution or forfeiture, or sentence in this case.

[3] For example, defense attorneys have been asked to sign plea agreements containing the following acknowledgment:

I have discussed this case and the plea agreement with my client, in detail and have advised the defendant of all matters within the scope of Fed. R. Crim. P. 11, the constitutional and other rights of an accused, the factual basis for and the nature of the offense to which the guilty plea will be entered, possible defenses, and the consequences of the guilty plea including the maximum statutory sentence possible. I have further discussed the sentencing guideline concept with the defendant. No assurances, promises, or representations have been given to me or to the defendant by the United States or by any of its representatives which are not contained in this written agreement. I concur in the entry of the plea as indicated above and on the terms and conditions set forth in this agreement as in the best interests of my client. I agree to make a bona fide effort to ensure that the guilty plea is entered in accordance with all the requirements of Fed.R.Crim.P.11.

[4] Due in part to long-standing differences between state and federal law, state prosecutors generally do not request, and state courts generally do not enforce, such broad waivers. See generally Ariz. R. Crim. P. 32.2 (providing a right to file a post-conviction relief petition); cf.State v. Ethington, 121 Ariz. 572, 573, 592 P.2d 768, 769 (1979) (“[W]e think public policy forbids a prosecutor from insulating himself from review by bargaining away a defendant’s appeal rights.”); State v. Ward, 211 Ariz. 158, 165 n.5, 118 P.3d 1122, 1129 n.5 (Ct. App. 2005) (“In Arizona, a defendant cannot waive the constitutional right of appeal in a plea agreement.”); see alsoMontgomery v. Sheldon, 182 Ariz. 118, 119, 893 P.2d 1281, 1282 (1995) (“There are good reasons for this rule. A defendant’s right to appellate review is an essential safeguard against wrongful conviction. Absent a meaningful form of appeal, possible errors in the guilt determination of even pleading defendants would stand unchecked. Although there is less likelihood of error when a defendant voluntarily pleads guilty, experience shows that, as in all human endeavors, mistakes occur in plea proceedings.”).

[5] See, e.g., United States v. Joyce, 357 F.3d 921, 922 (9th Cir. 2004) (“A defendant’s waiver of his appellate rights is enforceable if the language of the waiver encompasses his right to appeal on the grounds raised, and if the waiver was knowingly and voluntarily made.”); Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005) (concluding that waivers are unenforceable against challenges to voluntariness). With respect to enforcement, our opinion does not address substantive law; it addresses only the ethical responsibilities of attorneys practicing in Arizona.

[6] See, e.g., Dep’t of Justice, Attorney General Holder Announces New Policy to Enhance Justice Department’s Commitment to Support Defendants’ Right to Counsel (Oct. 14, 2014), http://www.justice.gov/opa/pr/attorney-general-holder-announces-new-policy-enhance-justice-departments-commitment-suppoet; United States v. Kentucky Bar Ass’n, 439 S.W.3d 136, 140 (Ky. 2014) (upholding Kentucky legal ethics opinion over the Department of Justice’s objections and concluding “that the use of IAC waivers in plea bargain agreements (1) creates a nonwaivable conflict of interest between the defendant and his attorney, (2) operates effectively to limit the attorney’s liability for malpractice, and (3) induces, by the prosecutor’s insertion of the waiver into plea agreements, an ethical breach by defense counsel”). The United States Attorney’s Office for the District of Arizona has accordingly adjusted its standard plea agreement, adding the following line to its current waiver: “This waiver shall not be construed to bar a claim by the defendant of ineffective assistance of counsel.”

[7] After we had drafted and circulated our initial opinion on these waivers, outgoing Attorney General Eric Holder rejected these waivers to the extent that they require defendants to waive their right to raise ineffective assistance of counsel claims. Thus, as a matter of current Department of Justice (DOJ) policy, federal prosecutors are no longer permitted to insist on waivers of ineffective assistance of counsel claims. Notwithstanding DOJ’s recent policy change, we have nevertheless decided to publish our opinion because (1) DOJ policy, which explicitly rejects any “legal and ethical” problems with these waivers, could reauthorize such waivers at any point, (2) the policy does not address plea agreements that purport to waive prosecutorial misconduct claims, and (3) relying on the incomplete analysis in our prior ethics opinion on this issue (Op. 95-08), an individual state or federal prosecutor could include such a waiver in a plea agreement under the misimpression that such conduct is ethically permissible.

[8] ER 1.8(h)(1) bars a lawyer from “mak[ing] an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement.” This opinion does not revisit the question of whether ER 1.8(h) might apply because, as discussed below, other ethical rules clearly prohibit the waivers at issue.

[9] Independent counsel would not suffer from the conflicts of interest described above. See, e.g., ABA Standards for Criminal Justice, Standard 4-6.4(a) (2015) (“If a proposed [plea] agreement contains such a waiver regarding ineffective assistance of counsel, defense counsel should ensure that the defendant has consulted with independent counsel regarding the waiver before agreeing to the disposition.”).

[10] The Alabama Ethics Committee put the problem succinctly:

the lawyer cannot simply refuse to explain such a [waiver] to the client as he has a duty under Rules 1.1 [Competence], 1.2 [Scope of Representation], and 1.4 [Communication] to thoroughly explain each and every provision of the agreement to the client. A lawyer must do so to ensure that the client is knowingly and voluntarily entering into the agreement. As such, a prosecutor may not require a criminal defendant to waive such rights as a condition of any plea deal since, in doing so, he would be “inducing” the defendant’s lawyer into violating Rules 1.7(b) and 1.8(h) . . . or, would place the defendant into the untenable situation of either accepting counsel that has an inherent conflict of interest or proceeding without the benefit of counsel. 

Ala. Ethics Op. 2011-02.

[11] As the ABA recently noted when denouncing such waivers: 

Prosecutors should not require a defendant to waive the right to raise defense counsel’s ineffectiveness as part of the terms of a waiver of appellate and post conviction claims.  A prosecutor typically does not have, and should not be required to have, any sound factual basis to conclude that the defendant’s counsel had, up to the signing of the plea agreement, provided effective assistance in the plea bargaining process.  The prosecutor does not know to what extent defense counsel has investigated the case—both the facts and the applicable law, discussed the case and the plea offer with the defendant, explained the collateral consequences of a conviction and otherwise provided effective representation.

ABA House of Delegates Resolution and Report 113E (2013) (citing in part R. Michael Cassidy, Some Reflections on Ethics and Plea Bargaining,48 San Diego L. Rev. 93, 108 (2011) (“Insisting on so-called ineffective counsel waivers impresses me as overreaching of the worst sort and fundamentally inconsistent with a prosecutor’s obligation as a minister of justice.”)).

[12] See, e.g., id. (“It is especially problematic that the prosecutor includes in the plea agreement a provision that requires the defendant to waive any ineffectiveness by defense counsel occurring after the plea bargain is accepted by the court. Defense counsel’s ineffectiveness at sentencing or ineffectiveness in challenging the breach of the plea agreement by the prosecutor should not be immune from a later challenge by the defendant. In such circumstances, defense counsel’s deficient performance could not have been anticipated or predicted by either the defendant or the prosecutor. . . . The Standards for the Prosecution and the Defense Function suggest that defense attorneys should not accept plea bargains that include waivers of ‘important defense rights’ and prosecutors should not routinely require such plea waivers.”).

[13] See generally Missouri v. Frye, 132 S. Ct. 1399, 1408 (2012) (“The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages.”).

[14] See, e.g., Connick v. Thompson, 131 S. Ct. 1350, 1356 n.1 (2011) (noting that prosecutor knowingly failed to disclose exculpatory blood-type evidence); In re Peasley, 90 P.3d 764, 772-73, 779 (Ariz. 2004) (disbarring prosecutor because he permitted false testimony in a capital prosecution); see also generally ABA Standards for Criminal Justice, Standard 3-5.8(b), (e) (2015) (“A prosecutor should not suggest or require, as a condition of a disposition agreement, any waiver of post-conviction claims addressing ineffective assistance of counsel, prosecutorial misconduct, or destruction of evidence” or “waivers to hide an injustice or material flaw in the case which is undisclosed to the defense.”).

[15] See also Fl. Ethics Op. 12-1 (2012) (“The Committee believes that the vast majority of prosecutors act in good faith and would not intentionally commit misconduct. However, some prosecutorial misconduct can occur unintentionally and, in the rare instance, even intentionally. Prosecutorial misconduct may be known only to the prosecutor in question, e.g., when the prosecutor has failed to disclose exculpatory information. The Committee’s opinion is that it is prejudicial to the administration of justice for a prosecutor to require the criminal defendant to waive claims of prosecutorial misconduct when the prosecutor is in the best position, and indeed may be the only person, to be aware that misconduct has taken place.”).

[16] ER 1.7(a)(2); see also Standards for Criminal Justice: Prosecution Function Standard 3-1.3(a) (1993) (“A prosecutor should avoid a conflict of interest with respect to his or her official duties.”); id. Standard 3-1.3(f) (“A prosecutor should not permit his or her professional judgment or obligations to be affected by his or her own political, financial, business, property, or personal interests.”); Nat’l Prosecution Standards Standard 1-3.3(d) (Nat’l Dist. Att’ys Ass’n 2009) (noting that a prosecutor should “excuse himself or herself from any investigation, prosecution, or other matter where personal interests of the prosecutor would cause a fair-minded, objective observer to conclude that the prosecutor’s neutrality, judgment, or ability to administer the law in an objective manner may be compromised.”). The United States Attorney’s Manual analogously notes that prosecutors whose misconduct is in issue should generally recuse themselves (absent official consent). U.S. Dep’t of Justice, United States Attorneys’ Manual § 1-4.130(A)–(B) (1997) (“Before any pleading or other document concerning any non-frivolous allegation of serious misconduct is filed, whether in the district court or on appeal, it must be reviewed by a supervisor who is not implicated by the allegation,” and “[a] Department attorney who is found to have engaged in misconduct shall not represent the United States in litigation concerning the misconduct finding, unless approval is obtained from the responsible United States Attorney or Assistant Attorney General.”).

[17] Cf.State v. Ethington, 121 Ariz. 572, 573, 592 P.2d 768, 769 (1979) (“[W]e think public policy forbids a prosecutor from insulating himself from review by bargaining away a defendant’s appeal rights.”). Although defendants may still complain to the disciplinary authorities about prosecutorial misconduct, defendants are not typically incentivized to do so (as they generally seek judicial relief, not vindication of the legal profession’s ethics). Moreover, without a court finding of prosecutorial misconduct, the misconduct is less likely to result in discipline or civil liability. 

[18] We note that some prosecutorial offices already explicitly except prosecutorial misconduct claims from their waiver provisions. See, e.g., Susan R. Klein et al., Waiving the Criminal Justice System: An Empirical and Constitutional Analysis, 52 Am. Crim. L. Rev. 73, 87 (2015) (“Fourteen of the eighty-eight districts that require waivers of appellate rights only, and seventy-seven districts that include waivers collateral attacks, provide an exception for prosecutorial misconduct.”). For example, in the Western District of Texas, when a prosecutor asks a defendant to waive the right to bring a later habeas corpus petition, the waiver includes the following exception: “‘the defendant does not waive his right to raise a challenge based on ineffective assistance of counsel and prosecutorial misconduct.’” Id. at 84.

[19] ABA House of Delegates Resolution and Report 113E (2013) (resolving that “the American Bar Association opposes plea or sentencing agreements that waive a criminal defendant’s post-conviction claims addressing ineffective assistance of counsel, prosecutorial misconduct or destruction of evidence” and urging courts to reject such waivers).  The accompanying report notes that “[w]ith an astronomically high percentage of criminal cases decided by pleas of guilty, the routine use of the guilty plea waivers of ineffective assistance of counsel, prosecutorial misconduct and destruction of evidence has the effect of insulating the guilty plea process from appellate court scrutiny and public awareness and should not be tolerated unless the claims based upon past conduct and are specifically identified in the plea or sentencing agreements or in the transcript of the proceedings.” Id. The revised ABA Standards for Criminal Justice are consistent. ABA Standards for Criminal Justice, Standard 3-5.8(b) (2015) (“A prosecutor should not suggest or require, as a condition of a disposition agreement, any waiver of post-conviction claims addressing ineffective assistance of counsel, prosecutorial misconduct, or destruction of evidence, unless such claims are based on past instances of such conduct that are specifically identified in the agreement or in the transcript of proceedings that address the agreement.”).

 

Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rule changes, a different conclusion may be appropriate.

 

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