In order to prevail on a claim of ineffective assistance of counsel, the defendant must establish that (1) counsel’s error constituted deficient performance and (2) was prejudicial.

GROUNDS " IAC " DEFERENCE TO DEFENSE COUNSELS STRATEGIC CHOICES
Premo v. Moore (January 19, 2011) ___ U.S. ___, 131 S.Ct. ___, reversing (9th Cir. Cir. 2009) 534 F.3d 1138 (holding counsel did not render deficient performance by recommending a guilty plea, instead of a motion to suppress a confession, where it was likely that the defendants confession to others would have made his police confession superfluous; and pleading early to avoid a capital prosecution without filing motions was not an unreasonable strategy: Many defendants reasonably enter plea agreements even though there is a significant probability [could the Court mean possibility] " much more than a reasonable doubt " that they would be acquitted if they proceeded to trial.).

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " DEFERENCE TO DEFENSE COUNSELS STRATEGIC CHOICES
Harrington v. Richter (January 19, 2011) 131 S.Ct. 770, reversing (9th Cir. 2009) 578 F.3d 944 (en banc) (under limited role of federal court in reviewing state court denial of effective assistance claims, state court could make a reasonable judicial determination that counsel followed an arguably reasonable strategy: the question is not whether counsels performance deviated from best practices or most common custom, but simply whether it was incompetence under professional norms and here, it was at least arguable that a reasonable attorney could decide to forego inquiry into the blood evidence since further blood evidence might well have confirmed the prosecutions theory, and it sometimes is better to try to cast pervasive suspicion of doubt than to strive to prove a certainty that exonerates.).

GROUNDS " IAC " DEFERENCE TO DEFENSE COUNSELS STRATEGIC CHOICES
Premo v. Moore (January 19, 2011) 131 S.Ct. 733, reversing (9th Cir. Cir. 2009) 534 F.3d 1138 (holding counsel did not render deficient performance by recommending a guilty plea, instead of a motion to suppress a confession, where it was likely that the defendants confession to others would have made his police confession superfluous; and pleading early to avoid a capital prosecution without filing motions was not an unreasonable strategy: Many defendants reasonably enter plea agreements even though there is a significant probability [could the Court mean possibility] " much more than a reasonable doubt " that they would be acquitted if they proceeded to trial.).

POST CON RELIEF " GROUNDS -- RIGHT TO COUNSEL " POTENTIAL SENTENCE REQUIRED FOR APPLICATION OF RIGHT
Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002) (suspended sentence that can potentially be transformed into actual incarceration is sufficient to trigger the Sixth Amendment right to counsel in misdemeanor cases). Misdemeanor convictions in which no custody sentence, or suspended sentence, was imposed can still trigger immigration consequences. In these cases, the Sixth Amendment right to counsel does not apply, so post-conviction relief would not be possible on grounds of ineffective assistance of counsel.

PRACTICE ADVISORY -- INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE DETERMINATION DOES NOT DEPEND ON IDIOSYNCRACIES OF PARTICULAR DECISIONMAKER
In assessing a claim of prejudice from ineffective assistance of counsel, the court does not consider the idiosyncrasies of a particular decisionmaker, whether judge or prosecutor. Therefore, a declaration of the prosecutor that s/he would never have altered the plea for immigration reasons is not conclusive. The question is whether a reasonable prosecutor would have done so, in light of the totality of the circumstances. In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law. An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, nullification, and the like. A defendant has no entitlement to the luck of a lawless decisionmaker, even if a lawless decision cannot be reviewed. The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision. It should not depend on the idiosyncrasies of the particular decisionmaker, such as unusual propensities toward harshness or leniency. Although these factors may actually have entered into counsel's selection of strategies and, to that limited extent, may thus affect the performance inquiry, they are irrelevant to the prejudice inquiry. Thus, evidence about the actual process of decision, if not part of the record of the proceeding under review, and evidence about, for example, a particular judge's sentencing practices, should not be considered in the prejudice determination. Strickland v. Washington (1984) 466 U.S. 668, 694-695, 104 S.Ct. 2052, 80 L.Ed.2d 674. Accord, Hill v. Lockhart (1985) 474 U.S. 52, 59-60, 106 S.Ct. 366 (these predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard for the idiosyncrasies of the particular decisionmaker.); United States v. Moran (1st Cir. 2004) 393 F.3d 1, 11 n.6; Jones v. Jones (5th Cir. 1998) 163 F.3d 285, 306; Miller v. Champion (10th Cir. 1998) 161 F.3d 1249, 1253-1254; see In re Sassounian (1995) 9 Cal.4th 535, 544-545, 887 P.2d 527 (employing this ineffective assistance prejudice concept in the analogous area of prejudice from prosecutorial suppression of material evidence)("Further, it is a probability that is, as it were, objective, based on an assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision, and not dependent on the idiosyncrasies of the particular decisionmaker, including the possibility of arbitrariness, whimsy, caprice, nullification, and the like. (Strickland v. Washington, supra, 466 U.S. at p. 695, 104 S.Ct. at p. 2068 [dealing with ineffective assistance of counsel in violation of the Sixth Amendment].)".

Ninth Circuit

POST CON RELIEF " REMEDY " ERROR AFFECTED PLEA, NOT MERELY SENTENCE
Johnson v. Uribe, 682 F.3d 1238 (9th Cir. Jun. 22, 2012) (reversing district courts grant of habeas corpus relief invalidating only the sentence, since ineffective assistance of counsel affected the entire plea negotiation stage of the proceedings in the Superior Court: "Although the district court found that Johnson would still have entered into the Vargas waiver when it was offered, we cannot properly determine whether, with effective assistance of counsel, Johnson would have even reached that point in the proceedings. It is impossible for us to know how the earlier stages of the plea negotiation process might have progressed had Durdines rendered effective counsel from the outset by correctly evaluating the charges against Johnson. Where, as here, it is mere speculation to assume that the plea negotiations would have progressed in a similar fashion with competent counsel, we cannot allow the defendant to be prejudiced by that uncertainty. See United States v. Blaylock, 20 F.3d 1458, 1469 (9th Cir. 1994) (The Sixth Amendment mandates that the State [or the government] bear the risk of constitutionally deficient assistance of counsel.) (quoting Kimmelman v. Morrison, 477 U.S. 365 (1986)). Note: Counsel can use this authority to counter the prosecutors argument that the defendant has not proven by a preponderance of the evidence that an immigration-neutral disposition would have been offered and that therefore it is mere speculation that the defendant would have rejected the plea offer. Moreover, the Strickland prejudice standard does not require proof by a preponderance of the evidence, but only by a lesser standard sufficient to undermine confidence in the outcome. Thanks to Michael K. Mehr.

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " DEFERENCE TO DEFENSE COUNSELS STRATEGIC CHOICES
Harrington v. Richter (January 19, 2011) ___ U.S. ___, 131 S.Ct. ___, reversing (9th Cir. 2009) 578 F.3d 944 (en banc) (under limited role of federal court in reviewing state court denial of effective assistance claims, state court could make a reasonable judicial determination that counsel followed an arguably reasonable strategy: the question is not whether counsels performance deviated from best practices or most common custom, but simply whether it was incompetence under professional norms and here, it was at least arguable that a reasonable attorney could decide to forego inquiry into the blood evidence since further blood evidence might well have confirmed the prosecutions theory, and it sometimes is better to try to cast pervasive suspicion of doubt than to strive to prove a certainty that exonerates.).

POST CON RELIEF " PLEA AGREEMENT " WAIVER OF RIGHT TO CLAIM IAC
Washington v. Lambert, 422 F.3d 864 (9th Cir. 2005) (plea agreement waiver of right to set aside a conviction on grounds of ineffective assistance of counsel is not effective to preclude doing so, since the plea agreement itself, containing the waiver, is not knowing or voluntary, collecting cases); see also United States v. Jeronimo, 398 F.3d 1149, 1156 n.4 (9th Cir. 2005) (leaving open possibility; collecting cases); United States v. Attar, 38 F.3d 727, 731 (4th Cir. 1994), cert denied, 115 S. Ct. 1957 (1995) (claim of ineffective assistance of counsel, in violation of the Sixth Amendment, can be reviewed on the merits on appeal notwithstanding a purported waiver of this right contained in a plea agreement); accord, Department of Justice, U.S. Attorney's Manual http://www.usdoj.gov/usao/eousa/foia_reading_room/ usam/title9/crm00626.htm; but see United States v. McIntosh, 492 F.3d 956, 959 (8th Cir. 2007)(plea agreement waiving right to challenge conviction for ineffective assistance of justice will be enforced unless enforcement would result in a miscarriage of justice); United States v. Snelson, No. 07-3202 (8th Cir. Feb. 10, 2009)(accord); cf. Ohio Ethics Opinion 2001-6 (2001)(it is unethical to waive of ineffective assistance of counsel claims in plea agreements); Tennessee Ethics Opinion 94-A-549 (1994)(same); North Carolina Ethics Opinion 129 (1993)(same); Vermont Ethics Opinion 95-4 (1995) (same); NACDL Ethics Advisory Committee, Proposed Formal Opinion No. 03-02 (February 2003)(it is unethical for criminal defense lawyers to participate in plea agreements that bar collateral attacks on convictions under 28 U.S.C. 2255), found at <http://www.nacdl.org/public.nsf/2cdd02b415ea3a64852566d6000daa79/ethicsopinions/$FILE/op03-02.pdf>.

Lower Courts of Ninth Circuit

CAL POST CON " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ARGUE RESTITUTION PROPERLY
People v. Pangan, ___ Cal.App.4th ___, 2013 WL 412913 (Feb. 4, 2013) (counsels failure to raise the issue of the time value of money in determining the victims economic loss based on a diminished or lost stream of future payments was ineffective assistance of counsel, and no satisfactory explanation excused counsel's failure).

Other

PRACTICE ADVISORY " POST-CONVICTION RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " IAC DURING PLEA NEGOTIATIONS " DISTINGUISHING LOCKHART V. FRETWELL
In 1993, the Supreme Court stated that the only errors of counsel that can be considered as claims of ineffective assistance are those that deprive the defendant of a substantive or procedural right to which the law entitles him in his defense. Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). While pertinent in Lockhart, in which counsels error deprived the defendant only of a benefit later declared illegal, Justice OConnor was at pains to point out that this language, as well as the courts decision in that case, flowed from the highly unusual fact that the only benefit of which the defendant was there deprived was one which was forbidden under the correct legal analysis. Lockhart did not alter in any way the normal analysis of claims of ineffective assistance of counsel. The normal Strickland test provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims. Williams v. Taylor, 529 U.S. 362, 391 (2000). The Virginia Supreme Court erred in holding that our decision in Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), modified or in some way supplanted the rule set down in Strickland. Ibid. Williams clarified that the Courts earlier decision in Lockhart dealt with the rare situation where the likelihood of a different outcome attributable to an incorrect interpretation of the law should be regarded as a potential windfall to the defendant rather than the legitimate prejudice contemplated by our opinion in Strickland. Williams, 529 U.S. at 392; see also United States v. Glover, 531 U.S. 198, 203 (2001) ([O]ur holding in Lockhart does not supplant the Strickland analysis.); Jenny Roberts, Proving Prejudice, Post-Padilla, 54 HOWARD L. REV. 693, 699 n.23 (2011). Lockhart was an exception to the normal Strickland prejudice test, applicable only when the benefit of which the defendant was deprived by counsels error was in fact prohibited by a later change in the law. It would be an unfair error of the gravest magnitude to glorify it into a rule that eliminates any protection against ineffective assistance of counsel except in those rare cases in which the defendant can show a reasonable probability he or she would have taken the case to trial.

PRACTICE ADVISORY " POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE " FORMS OF PREJUDICE
The two-part Strickland test for ineffective assistance of counsel applies to guilty pleas as it does to other critical phases of the criminal proceeding. Hill, 474 U.S. at 57. Where counsel is ineffective at the guilty-plea stage, one form of Strickland prejudice " a reasonable probability of a different outcome " is shown where there is a reasonable probability that, but for counsels errors, he would not have pleaded guilty and would have insisted on going to trial. Id. at 59. Stricklands second prong requires a defendant to establish that his counsels objectively unreasonable performance prejudiced him. Prejudice exists in this context where there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. This is the prejudice test normally used since Strickland by state courts in which the vast majority of all criminal cases are prosecuted, as well as federal court. The court in Strickland adopted the following standard for prejudice: "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. . . . [a] reasonable probability is a probability sufficient to undermine confidence in the outcome." The court said that a reasonable probability is more stringent than a standard in which the defendant would "show that the errors had some conceivable effect on the outcome of the proceeding," and less stringent than a "more likely than not" standard." Strickland, 466 U.S. at 694; see Carissa Byrne Hessick, Ineffective Assistance at Sentencing, 50 B.C.L. Rev. 1069, 1079 (2009) Courts have recognized many forms of prejudice that meet Stricklands general test in different contexts. For example, a defendant may also show prejudice if the attorneys performance caused the defendant to plead guilty to harsher charges or receive a higher sentence. See, e.g., United States v. Kwan, 407 F.3d 1005, 1017-18 (9th Cir. 2005) (prejudice shown where defendant could have avoided deportation by persuading court or prosecutor to shorten sentence by two days); cf. Puckett v. United States, 129 S. Ct. 1423, 1433 n.4 (2009) (prejudice from breach of plea bargain can be shown by adverse effect on sentence); United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004) (to show prejudice from courts plain error in administering Rule 11, the defendant must show a reasonable probability that, but for the error, he would not have entered the plea) (citing Strickland). Another form of ineffective assistance was counsels failure, at sentence, to request a judicial recommendation against deportation. JRADs were so essential to avoiding the collateral consequence of deportation that courts found failure to request a JRAD for a defendant facing deportation to be ineffective assistance of counsel under the Sixth Amendment. See, e.g., United States v. Castro, 26 F.3d 557, 563 (5th Cir. 1994); Janvier, 793 F.2d at 456. The remedy for this deficiency was obviously to vacate the sentence, and remand for resentencing giving counsel an opportunity to make that motion. This is another example of context-specific prejudice. Similarly, the prejudice inquiry must be tailored to the specific error that failed constitutional muster. Ineffectiveness at trial requires a new trial. Ineffectiveness at sentence requires a fresh sentencing hearing. Ineffectiveness in failing to make a motion for a non-deportable sentence requires a new sentence hearing at which competent counsel can make that motion. Similarly, ineffective assistance at plea requires invalidating the plea, so counsel can render effective assistance at that critical stage as well. In addition to making it reasonably likely a defendant would have rejected the plea and gone to trial, many errors prevent the defendant from obtaining a beneficial plea-bargain. A well-developed case for suppression [of evidence], or a thorough investigation that reveals weaknesses in the governments case, for example, often lead to a better plea offer from the prosecution. Jenny Roberts, Proving Prejudice, Post-Padilla, 54 HOWARD L. REV. 693, 705 n.51 (2011). In Padilla, Justice Stevens stated that the court has long recognized that the negotiation of a plea bargain is a critical stage of litigation for purposes of the Sixth Amendment right to effective assistance of counsel. Padilla, 130 S.Ct. at 1486. There are two main types of plea bargaining: charge bargains, and sentence bargains. See Ronald Wright & Marc Miller, The Screening/Bargaining Tradeoff, 55 STAN.L.REV. 29, 32 nn.10, 82 (2002)(In a charge bargain, the prosecution agrees to dismiss some charges in return for a plea of guilty to the remaining charges, whereas sentence bargains entail a conversation [that] relates directly to the sentence rather than to the crime of conviction.). A charge bargain is more suited to the reasonable chance defendant would have gone to trial type of prejudice, but even here, a serious error in charge bargaining, such as one that ignores the immigration consequences of a plea to one count as opposed to another, can cause serious prejudice in the form of the loss of a plea to an equivalent offense that did not carry the mandatory deportation consequence. See Padilla, 130 S.Ct. at 1485. Plea bargaining, however, often involves a negotiation that extends beyond the question of guilt or innocence, and affects or controls the sentence, either directly or indirectly. A plea bargain can control sentence directly by specifying the exact sentence agreed to be imposed. An error in this aspect of a plea bargain would thus translate directly into a sentence error, rather than a trial error, and a reasonable chance of a shorter sentence absent counsels error would constitute prejudice under Glover. A plea bargain can also specify the level of the offense of conviction, as where the prosecution offers a misdemeanor plea. This aspect of plea bargaining controls the sentence indirectly, since the maximum sentence for a misdemeanor is less than for a felony. A prejudice requirement of a showing of a reasonable chance the defendant would have gone to trial ignores the real world in which 95% of all criminal cases are resolved by plea bargains. This willfully blind test ignores nearly all of realistic damage counsels plea-bargaining errors can cause. Lower courts have recognized the many types of prejudice that can flow from ineffective assistance of counsel. In United States v. Kwan, 407 F.3d 1005, 1017 (9th Cir. 2005), the court found that upon learning of the actual immigration consequences of the disposition after plea but before sentence, defense counsel should have undertaken three different defensive efforts to forestall the damage: (1) he should have tried to renegotiate the case to avert the immigration consequences; (2) he should have filed a motion to withdraw from the plea bargain in view of the new information; and (3) he should have asked the sentencing judge for a sentence short enough to avoid the mandatory deportation consequences of the plea. This decision recognizes the reality of the situation: counsels duties with respect to the immigration consequences of a case extend beyond mere advice. Counsel must not only tell the client The axe is coming down on your neck. Counsel must actually attempt to stop the axe by engaging in the vigorous representation required by the Sixth Amendment. Counsel must do more than simply advise the client during plea bargaining; counsel must affirmatively attempt to secure a favorable plea bargain for the client. A failure to do an adequate job can cause many different forms of prejudice: (1) It can forfeit a reasonable chance the defendant would have chosen to take the case to trial, where a reasonable defendant would have chosen that course. (2) It can forfeit a misdemeanor one-year lid on the possible sentence for the offense of conviction. (3) It can forfeit " as in Padilla " a chance of negotiating a non-deportable alternative plea. (4) It can forfeit as in Glover a reasonable chance of a shorter sentence. There may be many other forms that prejudice can take, depending on the nature of the error and the context in which it occurs. The great benefit of the Strickland general prejudice definition is that it is flexible, and depends, as the Supreme Court has many times noted, on the facts of the case. A straight-jacket, one-size-fits-all, prejudice test ignores the complex realities of the plea-bargaining criminal justice system we have.

PRACTICE ADVISORY " POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL DISADVANTAGES OF FIXED RULES IN THIS FACT-INTENSIVE ANALYSIS
Claims of ineffective assistance of counsel are intensely fact-specific, resisting fixed rules. The Supreme Court has time and again resisted attempts to impose fixed rules delineating the obligations of counsel under the Sixth Amendment. Roe v. Flores-Ortega, 528 U.S. 470, 478-79 (2000). Attorney errors come in an infinite variety[.] Strickland, 466 U.S. at 693. No particular set of detailed rules for counsels conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Id. at 688-89. The Sixth Amendment does not specify[] particular requirements of effective assistance. Id. at 688. Instead, it relies . . . on the legal professions maintenance of standards sufficient to justify the law's presumption that counsel will fulfill [its] role in the adversary process . . . . Id. Accordingly, [i]n any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Id. (emphasis added). Prevailing norms of practice as reflected in American Bar Association (ABA) standards and the like are helpful guides to determining what is reasonable. Id.

CAL POST CON"GROUNDS"INEFFECTIVE ASSISTANCE OF COUNSEL"FAILURE TO MOVE TO DISMISS A COUNT
People v. Witcraft (2011) 201 Cal.App.4th 659 (IAC for failing to move to dismiss a count).

PRACTICE ADVISORY -- INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE DETERMINATION DOES NOT DEPEND ON IDIOSYNCRACIES OF PARTICULAR DECISIONMAKER
In assessing a claim of prejudice from ineffective assistance of counsel, the court does not consider the idiosyncrasies of a particular decisionmaker, whether judge or prosecutor. Therefore, a declaration of the prosecutor that s/he would never have altered the plea for immigration reasons is not conclusive. The question is whether a reasonable prosecutor would have done so, in light of the totality of the circumstances. In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law. An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, nullification, and the like. A defendant has no entitlement to the luck of a lawless decisionmaker, even if a lawless decision cannot be reviewed. The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision. It should not depend on the idiosyncrasies of the particular decisionmaker, such as unusual propensities toward harshness or leniency. Although these factors may actually have entered into counsel's selection of strategies and, to that limited extent, may thus affect the performance inquiry, they are irrelevant to the prejudice inquiry. Thus, evidence about the actual process of decision, if not part of the record of the proceeding under review, and evidence about, for example, a particular judge's sentencing practices, should not be considered in the prejudice determination. Strickland v. Washington (1984) 466 U.S. 668, 694-695, 104 S.Ct. 2052, 80 L.Ed.2d 674. Accord, Hill v. Lockhart (1985) 474 U.S. 52, 59-60, 106 S.Ct. 366 (these predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard for the idiosyncrasies of the particular decisionmaker.); United States v. Moran (1st Cir. 2004) 393 F.3d 1, 11 n.6; Jones v. Jones (5th Cir. 1998) 163 F.3d 285, 306; Miller v. Champion (10th Cir. 1998) 161 F.3d 1249, 1253-1254; see In re Sassounian (1995) 9 Cal.4th 535, 544-545, 887 P.2d 527 (employing this ineffective assistance prejudice concept in the analogous area of prejudice from prosecutorial suppression of material evidence)("Further, it is a probability that is, as it were, objective, based on an assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision, and not dependent on the idiosyncrasies of the particular decisionmaker, including the possibility of arbitrariness, whimsy, caprice, nullification, and the like. (Strickland v. Washington, supra, 466 U.S. at p. 695, 104 S.Ct. at p. 2068 [dealing with ineffective assistance of counsel in violation of the Sixth Amendment].)".

POST CON RELIEF " BIBLIOGRAPHY " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " SENTENCE
Carissa Byrne Hessick, Ineffective Assistance at Sentencing, 50 B.C.L. REV. 1069, 1072 (2009) (courts should adopt the prejudice standard ordinarily employed for ineffective assistance claims"i.e., a reasonable probability that the outcome would have been different); http://lawdigitalcommons.bc.edu/bclr/vol50/iss4/4

NACDL ETHICS ADVISORY COMMITTEE
Proposed Formal Opinion 03-02 (February 2003) Question Presented: NACDLs Ethics Advisory Committee, as well as the Strike Force and other committees, have received queries regarding a requirement in some federal plea agreements that bar collateral attacks on convictions under 28 U.S.C. 2255. The question presented is whether it is ethical for a criminal defense lawyer to participate in such a plea agreement. We have determined that it is not. Digest: Case law has split on this issue with the weight of authority sustaining such waivers in general, but not where the client seeks to set aside his or her conviction by claiming that the plea itself was induced by ineffective assistance. No opinion we could find discussed the ethical implications of defense counsel agreeing to a waiver of an ineffective assistance claim as a general waiver of rights in a plea agreement. It is the opinion of the NACDL Ethics Advisory Committee that, aside from the general effect the courts might give such waivers, the rules of professional ethics prohibit a criminal defense lawyer from signing a plea agreement that limits the clients ability to claim ineffective assistance of counsel because the lawyer has a conflict of interest in agreeing to such a provision because it amounts to prospective limiting of liability. Therefore, the lawyer is duty bound to object to portions of a plea agreement that limit 2255 claims and refuse to assent to such an agreement with such language in it. ... <http://www.nacdl.org/public.nsf/2cdd02b415ea3a64852566d6000daa79/ethicsopinions/$FILE/op03-02.pdf>