Back in May, we had two posts about a hot issue: the extent to which lawyers can participate in plea bargains in which accused waive their right to bring ineffective assistance of counsel (IAC) claims. The matter is coming to a head because of a petition filed in the Supreme Court of Kentucky by the US Attorneys in Kentucky, asking that the high court vacate an ethics opinion holding that those pleas are unethical. Ellen Yaroshefsky (Cardozo) is part of a team of legal ethicists preparing an amicus brief that will urge the court to affirm the opinion.
According to Ellen's email to me, ten states (Kentucky, Florida, Alabama, Missouri, Nevada, North Carolina, Ohio, Tennessee, Vermont and Virginia) have opined that the pleas are unethical. The main issue, as you'd expect, is MR 1.7, but the rationales vary a bit. Texas and Arizona took the oppsite view. (According to comments in my earlier post, it may be the case that the ethics committee opinions are not being followed by the court.)
If you wish to review and/or sign the amicus brief, please contact Ellen Yaroshefsky at her work address.
Here are some other resources:
Bruce Green has a nice disucssion of the issue here.
Douglas Berman has a post at Sentencing Law and Policy.
Michael Downey of Teasdale Armstrong has a useful, concise round-up here.
Nancy King, of Vanderbilt, has this longer article. 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."
Here are the DOJ briefs in Kentucky and Florida.
Your thoughts? My sympathy is with the accuseds, but the Virginia opinion struck me as simply a policy argument and probably over-reaching, especially given that the Fourth Circuit has held such pleas to be lawful and enforceable. Is the best solution to ban the pleas? Or to require formal waivers of the conflict of interest supervised by the court? Or something else?