VSB Standing Committee on Legal Ethics Seeking Public Comment on Legal Ethics Opinion 1857

Additional Info view proposed LEO 1857 (pdf)

Pursuant to Part Six: Section IV, Paragraph 10-2(C) of the Rules of the Supreme Court of Virginia, the Virginia State Bar’s Standing Committee on Legal Ethics (“Committee”) is seeking public comment on proposed advisory 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?

This proposed opinion’s hypothetical involves a defense lawyer who represents a client who intends to plead guilty.  A plea agreement is offered by the prosecutor’s office that includes a provision that may have the legal effect of waiving the client’s right to later claim ineffective assistance of counsel.  The opinion addresses the question of whether the defense lawyer can ethically advise his client to accept this provision, and whether the prosecutor can ethically include such a provision in plea agreements.  The Committee opines that, to the extent that a plea agreement provision operates as a waiver of the client’s right to claim ineffective assistance of counsel, the defense lawyer may not ethically counsel his client to accept that provision.  First, the defense lawyer has a concurrent conflict of interest, as defined by Rule 1.7(a)(2), because of his personal interest in the issue of whether he has provided ineffective assistance.  Second, the defense lawyer’s recommendation to bargain away the client’s right to effective assistance of counsel prejudices the client, in violation of Rule 1.3(c).

The Committee is also of the opinion that it is a violation of Rule 8.4(a) for the prosecutor to offer a plea agreement containing such a provision.  If 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(a)(2).

Inspection and Comment

The proposed advisory opinion may be inspected at the office of the Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219-2800, between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday.  Copies of the proposed advisory opinion can be obtained from the offices of the Virginia State Bar by contacting the Office of Ethics Counsel at 804-775-0557, or can be found at the Virginia State Bar’s website at http://www.vsb.org not later than JULY 1, 2011, any individual, business, or other entity may file or submit to Karen A. Gould, the Executive Director of the Virginia State Bar, a written comment in support of or in opposition to the proposed advisory opinion.

Updated: May 23, 2011