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May 6, 2013

"Plea Bargains that Waive Claims of Ineffective Assistance -- Waiving Padilla and Frye"

The title of this post is the headline of this notable and timely new article by Nancy King now available via SSRN.  Here is the abstract:

This essay addresses the growing use and enforcement of terms in plea agreements by which a defendant waives his right to attack his plea agreement on the basis of constitutionally deficient representation during negotiations leading to the agreement. Contrary to other commentators and some courts, I argue that the Constitution does not forbid the enforcement of such a waiver, and review steps a judge may have to take in order to ensure that a defendant’s express waiver of the right to effective representation during plea bargaining is knowing and voluntary.  I also argue that although the Constitution does not prohibit judges from enforcing broad waivers of the right to attack a plea-based conviction on the basis of poor representation during bargaining, routine adoption and enforcement of such terms would be unwise, and suggest several strategies to avoid this result.

I am looking forward to finding time to read this article, in part because I have seen a number of federal plea agreements than include express waivers of the right to effective representation during plea bargaining.  I have not given much thought to the constitutional status of these plea terms, but I have long thought it ethically questionable for prosecutors to demand such terms in plea agreements and for defense attorney's to urge defendants to accept such a waiver without also advising the defendant to consider seeking outside advice as to whether he can and should accept such a term in any proposed plea deals.

This view is informed by professional conduct rules (such as this one) which often require a lawyer to recommend a client seek another independent lawyer's advice before waiving potential malpractice claims. Waiving a viable IAC claim seems comparable to waiving a malpractice claim; I think similar professional rules ought to apply to lawyers in this kind of setting, especially since it is the client's liberty and future, rather than just his money, at stake in any dealmaking in any serious criminal cases.

May 6, 2013 at 12:58 PM | Permalink


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I know the ABA is also looking into this issue. While I haven't seen any cases on it, it seems to me that the waiver is going to be de facto unenforceable, even if upheld. The defendant who waived his ineffective assistance claim could simply move that claim further down the line--that it was ineffective assistance to waive the ineffective assistance. Indeed, one could imagine a fairly absurd infinite regression of ineffective assistance claims, much like the company that tries to pay the income tax of an employee, only to find that payment is itself taxable income.

Posted by: Graham Polando | May 7, 2013 8:27:58 AM

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