Plea agreements are a familiar but still occasionally controversial part of criminal practice. In 2013, approximately 95 percent of white-collar cases nationwide were resolved by guilty plea, many (though of course not all) using plea agreements. An integral component of most federal plea agreements is a waiver by the defendant of the right to appeal or collaterally attack his sentence for any reason, including ineffective assistance of counsel. Because it guarantees finality to the conviction and sentence, the waiver is usually part of the quid pro quo insisted upon by the prosecution in exchange for a more lenient punishment.
Recently, however, a new type of challenge has been raised to broad waivers that cover Sixth Amendment claims. In October 2012, the National Association of Criminal Defense Lawyers (NACDL) issued a formal opinion concluding that professional ethics rules prohibit defense counsel from signing a plea agreement that limits the client’s ability to claim ineffective assistance of counsel. According to the NACDL, an appeal waiver creates a conflict of interest for defense counsel, because it allows the lawyer effectively to insulate his own conduct from review. NACDL Ethics Advisory Committee, Formal Op. 12-02 (Oct. 2012). Less than a year later, the American Bar Association (ABA) passed a resolution opposing plea or sentencing agreements that waive a criminal defendant’s postconviction ineffective assistance of counsel claims. The resolution states that a defendant should be provided independent counsel before being permitted to waive postconviction claims of ineffective assistance, and urges judges to reject plea and sentencing agreements that include such waivers, unless the agreement details the specific attorney conduct covered. ABA Resolution 113E (Aug. 12–13, 2013). These organizations join a number of state ethics committees that have reached the same conclusion.
