Rick Underwood's comment to an earlier post highlighted a hot issue that I'm trying to get a better handle on: the enforceabilty of a waiver of IAC claims by an accused. I found this law review article by Nancy King (abstract below), and this post at Sentencing Law & Policy by Douglas Berman, and this brief article by Michael Downey of Armstrong Teasdale. But I am wondering if our readers can identify which states have ethics opinions or appellate cases on this topic. Thanks.
I haven't dug too far into the topic but it already strikes me as one where the courts will be more willing to declare the waivers enforceable than ethics commitees will. Doesn't the lawyer have a conflict of interest if the potential IAC claim would be directed at that lawyer? And, if so, wouldn't the standard answer under the law of lawyering be a warning to the client about the conflict, coupled with an appropriate discussion with a judge on the record to see if the waiver is knowing and voluntary? (Both King and Berman seem to be leaning that way as well.)
The abstract of Prof. King's article:
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.