Can a plea agreement require a criminal defendant to waive claims of ineffective assistance of trial counsel or prosecutorial misconduct?

Currency note

This opinion was issued in 2001, before Ohio's adoption of the Ohio Rules of Professional Conduct (effective February 1, 2007). The Board flagged it as a "CPR Opinion" because it interprets the former Ohio Code of Professional Responsibility, since superseded. The DR 6-102, DR 1-102, and DR 1-103 provisions discussed here are now addressed by Ohio Prof. Cond. R. 1.8(h), 8.4, and 8.3. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Plain-English summary

The Board addressed whether a prosecutor may negotiate, and a defense attorney advise a defendant to accept, a plea agreement that requires the defendant to waive future claims of ineffective assistance of trial counsel or of prosecutorial misconduct. The Board concluded the practice was unethical for both attorneys.

For defense counsel, the Board focused on the conflict between the lawyer's own interest and the client's. Advising a client to waive a future ineffective-assistance claim asks the client to give up a claim directed at the lawyer's own performance, which the Board treated as the lawyer improperly limiting liability for the lawyer's own conduct, contrary to DR 6-102(A) and the lawyer's duty of loyalty. The lawyer's personal interest in avoiding such a claim conflicts with the client's interest in preserving it.

For the prosecutor, the Board reasoned that seeking a waiver of ineffective-assistance and prosecutorial-misconduct claims was conduct prejudicial to the administration of justice under DR 1-102(A)(5), and was inconsistent with the prosecutor's duty to seek justice rather than merely to convict (EC 7-13). The Board also noted the disciplinary system's reporting structure, including DR 1-103(A), in explaining why claims of attorney misconduct should not be bargained away.

Common questions

Q: Could an Ohio defense lawyer advise a client to waive future ineffective-assistance claims as part of a plea?

A: No. The opinion concluded it was unethical, because advising the client to give up a claim about the lawyer's own performance improperly limits the lawyer's liability and conflicts with the duty of loyalty.

Q: Could a prosecutor offer a plea conditioned on waiving misconduct claims?

A: No. The opinion concluded that negotiating such a waiver was conduct prejudicial to the administration of justice under DR 1-102(A)(5) and inconsistent with the prosecutor's duty to seek justice.

Q: Did the opinion turn on whether the waiver would be enforceable in court?

A: No. The opinion addressed the ethical propriety of negotiating and advising the waiver under the disciplinary rules, not the legal question of a waiver's enforceability.

Background and rules framework

The opinion interprets former Ohio Code of Professional Responsibility DR 6-102(A) (a lawyer shall not attempt to limit liability to a client for the lawyer's own malpractice), DR 1-102(A)(5) (conduct prejudicial to the administration of justice), and DR 1-103(A) (reporting misconduct), informed by EC 6-6 and EC 7-13 (the prosecutor's duty to seek justice). Those subjects are now addressed by Ohio Prof. Cond. R. 1.8(h), 8.4(d), 8.3, and 3.8 (Model Rules 1.8, 8.4, 8.3, and 3.8).

Citations and references

Rules of Professional Conduct:

• Former Ohio Code of Professional Responsibility DR 6-102(A), DR 1-102(A)(5), DR 1-103(A); EC 6-6, EC 7-13

See also

• Ohio BPC Op. 1996-009: Mandatory Arbitration Clauses in Engagement Letters
• Ohio BPC Op. 1988-013: Prosecutor Appearing Before a Judge Who Employs the Prosecutor's Assistant

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-01-006.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 2320, COLUMBUS, OH 43215-6104
(614) 644-5800 (888) 664-8345 FAX: (614) 644-5804
www.sconet.state.oh.us

                                         OFFICE OF SECRETARY




                                     OPINION 2001-6
                                  Issued December 7, 2001

[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded
by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]

SYLLABUS: It is unethical under the Ohio Code of Professional Responsibility for a
prosecutor to negotiate and a criminal defense attorney to advise a defendant to enter a
plea agreement that waives the defendant’s appellate or postconviction claims of
ineffective assistance of trial counsel or prosecutorial misconduct.

OPINION: This opinion addresses the ethical propriety of a prosecutor negotiating and
a criminal defense attorney advising a defendant to enter a plea agreement that contains
provisions waiving claims of ineffective assistance of counsel and prosecutorial
misconduct. This opinion does not address whether such waivers are legal or
constitutional.

    Is it unethical for a prosecutor to negotiate and a criminal defense attorney
    to advise a defendant to enter a plea agreement that waives the defendant’s
    appellate or postconviction claims of ineffective assistance of trial counsel
    or prosecutorial misconduct?

Waiver of claims of ineffective assistance of counsel

DR 6-102(A) of the Ohio Code of Professional Responsibility prohibits a lawyer from
attempting to exonerate himself or herself from liability for personal malpractice.

    DR 6-102(A) A lawyer shall not attempt to exonerate himself [herself]
    from or limit his [her] liability to his [her] client for his [her] personal
    malpractice.

EC 6-6 echoes the rule. “A lawyer should not seek, by contract or other means, to limit
his [her] individual liability to his [her] client for his [her] malpractice. A lawyer who
handles the affairs of his [her] client properly has no need to attempt to limit his [her]
liability for his [her] professional activities and one who does not handle the affairs of his
[her] client properly should not be permitted to do so.

At first reading of DR 6-102(A), one might question why a waiver of claims of
ineffective assistance of trial counsel might be considered an unethical attempt by an
attorney to limit his or her liability for personal malpractice.
Op. 2001-6 2

A cause of action for legal malpractice is distinct from an action to vacate a criminal
judgment based on ineffective assistance of counsel.

    An action to vacate a criminal judgment based on ineffective assistance of
    counsel is not the same as a cause of action for legal malpractice. A claim
    of ineffective assistance of counsel is based on constitutional guarantees
    and seeks reversal of a criminal conviction. Legal malpractice is a
    common-law action, grounded in tort, which seeks monetary damages.
    The proof of either of these two causes of action does not necessarily
    establish the other.

Krahn v. Kinney, 43 Ohio St. 3d 103, 107 (1989).

Further, in Ohio postconviction relief is not required to bring a legal malpractice action.

    [W]e hold that a plaintiff need not allege a reversal of his or her conviction
    in order to state a cause of action for legal malpractice arising from
    representation in a criminal proceeding. To plead a cause of action for
    attorney malpractice arising from criminal representation, a plaintiff must
    allege (1) an attorney-client relationship giving rise to a duty, (2) a breach
    of that duty, and (3) damages proximately caused by the breach.

Id. at 106.

Yet, there is a nexus between the two. Reversal of a conviction while not necessary to
state a cause of action for legal malpractice, may help establish the element of proximate
cause in a legal malpractice action.

    Having enunciated the elements of a claim sounding in malpractice and
    arising from criminal representation, we note that in most cases the
    failure to secure a reversal of the underlying criminal conviction may
    bear upon and even destroy the plaintiff’s ability to establish the
    element of proximate cause.

Id. at 106. (Emphasis added).

Thus, in Ohio, under Krahn v. Kinney, a reversal of a conviction is not a prerequisite for
stating a cause of action for legal malpractice; however, failure to obtain a reversal may
bear upon or even destroy a malpractice plaintiff’s ability to establish the proximate
cause element of a claim sounding in malpractice. Id. at 106, 107.

While waiver of claims of ineffective assistance of counsel does not eliminate the
opportunity for a criminal defendant to bring a legal malpractice action against a criminal
defense attorney, it significantly limits and may even destroy the defendant’s ability to
establish proximate cause, a necessary element of a legal malpractice claim. Given this
relationship, it is the Board’s view that a plea agreement provision that waives appellate
or postconviction claims of ineffective assistance of counsel does constitute an attempt to
limit the liability of the criminal defense attorney for personal malpractice.
Op. 2001-6 3

Waiver of claims of prosecutorial misconduct

Under DR 7-103, a prosecutor has special ethical duties.

   DR 7-103

   (A) A public prosecutor or other government lawyer shall not institute or
   cause to be instituted criminal charges when he [she] knows or it is
   obvious that the charges are not supported by probable cause.

   (B) A public prosecutor or other government lawyer in criminal litigation
   shall make timely disclosure to counsel for the defendant, or to the
   defendant if he [she] has no counsel, of the existence of evidence, known
   to the prosecutor or other government lawyer, that tends to negate the guilt
   of the accused, mitigate the degree of the offense, or reduce the
   punishment.

EC 7-13 elaborates upon the duties of a prosecutor.

   EC 7-13 The responsibility of a public prosecutor differs from that of the
   usual advocate; his [her] duty is to seek justice, not merely to convict.
   This special duty exists because; (1) the prosecutor represents the
   sovereign and therefore should use restraint in the discretionary exercise
   of governmental powers, such as in the selection of cases to prosecute; (2)
   during trial the prosecutor is not only an advocate but he [she] also may
   make decisions normally made by an individual client, and those affecting
   the public interest should be fair to all; and (3) in our system of criminal
   justice the accused is to be given the benefit of all reasonable doubts.
   With respect to evidence and witnesses, the prosecutor has responsibilities
   different from those of a lawyer in private practice; the prosecutor should
   make timely disclosure to the defense of available evidence, known to him
   [her] that tends to negate the guilt of the accused, mitigate the degree of
   the offense, or reduce the punishment. Further a prosecutor should not
   intentionally avoid pursuit of evidence merely because he [she] believes it
   will damage the prosecution’s case or aid the accused.

In addition to these special duties, prosecutors, like other lawyers, are bound by other
rules within the Ohio Code of Professional Responsibility. DR 7-102 requires
representation within the bounds of the law. DR 1-102(A)(5) prohibits engaging in
conduct that is prejudicial to the administration of justice.

Prosecutorial misconduct may involve violations of disciplinary rules that may come to
the judge’s attention and be reported to disciplinary authorities pursuant to Canon 3(D)(2)
of the Code of Judicial Conduct and DR 1-103(A). A prosecutor should not attempt
through a plea agreement to excuse himself or herself from following disciplinary rules
governing a prosecutor’s behavior. A prosecutor does not serve justice by attempting to
shield his or her past or future misconduct from scrutiny by obtaining a criminal
defendant’s waiver of appellate or postconviction claims based on allegations of
Op. 2001-6 4

prosecutorial misconduct. This Board’s view is that waiver of appellate or
postconviction claims of prosecutorial misconduct is an improper attempt to insulate the
prosecutor from his or her duties under DR 7-102, 7-103, and DR 1-102(A)(5) of the
Ohio Code of Professional Responsibility.

Views from other states

North Carolina and Tennessee advise that it is ethically improper for prosecutors and
criminal defense attorneys to negotiate plea agreements that waive allegations of
ineffective assistance of counsel or prosecutorial misconduct.

   North Carolina State Bar, Revised Op. RPC 129 (1993). Prosecutors and
   defense attorneys may negotiate plea agreements waiving appellate and
   postconviction rights, except in regard to allegations of ineffective
   assistance of counsel or prosecutorial misconduct.

   Bd of Professional Responsibility, Sup Ct Tennessee, Op. 94-A-549
   (1994). Neither a prosecutor nor a defense counsel can ethically include a
   provision in a plea agreement that waives the defendant’s right to allege
   ineffective assistance of counsel or prosecutorial misconduct.

Arizona presents a fractured view.

   State Bar of Arizona Op. 95-08 (1995). A prosecutor and defense counsel
   may enter into a plea agreement whereby the defendant waives
   postconviction and collateral right, including a defendant’s right to later
   allege ineffective assistance of counsel lawyer. (A minority of the
   committee expressed a dissenting view that by participating in a plea
   agreement waiving a defendant’s right to allege ineffective assistance of
   counsel, a criminal defense counsel violates the ethical rule that prohibits
   attempts to limit liability for malpractice.)

Summary of this Board’s view.

First, given that failure to obtain a reversal of a criminal conviction may bear upon or
even destroy a legal malpractice plaintiff’s ability to establish the proximate cause
element of a claim sounding in malpractice, it is the Board’s view that waiver of appellate
or postconviction claims of ineffective assistance of counsel does constitute under DR 6-
102(A) an improper attempt to limit the liability of the criminal defense attorney for
personal malpractice. Second, given the duties of a prosecutor, waiver of appellate or
postconviction claims of prosecutorial misconduct is an improper attempt to insulate the
prosecutor from properly fulfilling his or her duties under DR 7-102, 7-103, and DR 1-
102(A)(5) of the Ohio Code of Professional Responsibility.

In conclusion, the Board advises that it is unethical under the Ohio Code of Professional
Responsibility for a prosecutor to negotiate and a criminal defense attorney to advise a
defendant to enter a plea agreement that waives the defendant’s appellate or
postconviction claims of ineffective assistance of trial counsel or prosecutorial
misconduct.
Op. 2001-6 5

Advisory Opinions of the Board of Commissioners on Grievances and Discipline are
informal, nonbinding opinions in response to prospective or hypothetical questions
regarding the application of the Supreme Court Rules for the Government of the
Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the
Code of Professional Responsibility, the Code of Judicial Conduct, and the
Attorney’s Oath of Office.