U.S. Department of Justice prohibits ineffective assistance of counsel waivers as part of plea bargains in federal criminal prosecutions

Hello everyone and welcome to this Ethics Alert which will discuss the recent Washington Post article which states that the Justice Department has prohibited U.S. Attorneys from requiring waivers of ineffective assistance of counsel in exchange for a plea. The Post article is here: http://www.washingtonpost.com/world/national-security/doj-to-amend-competent-counsel-waiver-practices-as-holder-prepares-to-step-down/2014/10/14/465efbde-53ba-11e4-809b-8cc0a295c773_story.html?hpid=z3

According to the Washington Post article, the Justice Department said on October 14, 2014 that, effective on that date, federal prosecutors are prohibited from requiring criminal defendants to waive their right to claim ineffective assistance of counsel a condition of a plea. Attorney General Eric H. Holder said the “policy is an attempt to ensure that all individuals who face criminal charges are ably represented. ‘Everyone in this country who faces criminal legal action deserves the opportunity to make decisions with the assistance of effective legal counsel…(u)nder this policy, no defendant will have to forego their right to able representation in the course of pleading guilty to a crime.’”

“A memo by (Deputy Attorney General James M.) Cole directs federal prosecutors to no longer require criminal defendants to waive their future claims of ineffective assistance of counsel in plea agreements. It also instructs federal prosecutors to stop enforcing waivers that have already been signed in cases where defense counsel provided ineffective assistance that resulted in prejudice or where the defendant’s claim raises a serious issue that a court should resolve.” The Post article states that some U.S. attorney’s offices no longer require defendants to waive their right to make future claims about the effectiveness of their counsel; however, before the new policy was announced, 35 of the Justice Department’s 94 U.S. attorney’s offices still permitted the waiver requirement.

Bottom line: As I discussed in my 12/13/12 Ethics Alert blog, which is here: https://jcorsmeier.wordpress.com/2012/12/13/florida-bars-board-of-governors-approves-advisory-opinions-related-to-waivers-of-ineffective-assistance-and-prosecutorial-misconduct-and-permitting-lawyers-to-authorize-non-lawyers-to-use-e-portal-c/, Florida Bar Ethics Advisory Opinion 12-1 opines that it was unethical for criminal prosecutors to request such ineffective assistance waivers and for criminal defense lawyers to accept them. The opinion also states that it was unethical for prosecutors to request, and defense lawyers to agree to waivers of prosecutorial misconduct. This new DOJ policy now prohibits all federal criminal prosecutors from requiring such a waiver as part of a criminal plea.

Let’s be careful out there.

Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670

About jcorsmeier

Joseph A. Corsmeier is an “AV” rated attorney practicing in Clearwater, Florida. He concentrates his practice primarily in the areas of defense of attorney disciplinary matters before The Florida Bar, attorney admission matters before the Florida Board of Bar Examiners, and professional license and disciplinary matters before the Boards of the State of Florida. He provides expert analysis and opinion on conflict of interest and other attorney disqualification and legal malpractice issues and he testified as an expert in the Florida courts. He served as an Assistant State Attorney in the Sixth Judicial Circuit from 1986 to 1990 where he prosecuted felonies exclusively from June 1987, and as Bar Counsel for The Florida Bar’s Department of Lawyer Regulation from 1990 to 1998. He also practices in the areas of estate planning and Medicaid qualification, workers’ compensation, and labor law. Mr. Corsmeier is the author of numerous articles for various bar publications, has spoken at numerous local and statewide seminars on various topics, including ethics and professionalism, and was an instructor of legal ethics for paralegals at Rollins College until the Tampa campus closed. He received his undergraduate degree from Florida State University and his J.D. from Mercer University. He is admitted to practice in all Florida Courts, the Supreme Court of the United States, the United States Court of Appeals for the Eleventh Circuit, and the Middle District of Florida. He is a member of The Florida Bar, American Bar Association, the Association of Professional Responsibility Lawyers, and the Clearwater and St. Petersburg Bar Associations.
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