Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

Recently it has become evident that NACDL’s voice is being heard loud and clear as it speaks out against requiring waivers of ineffective assistance of counsel (IAC) claims in federal plea agreements. Attorney General Eric Holder announced on Oct. 14, 2014, that the Department of Justice will no longer ask criminal defendants who plead guilty to waive their right to bring future claims of ineffective assistance of counsel. The DOJ press release¹ states that Deputy Attorney General James Cole unveiled the new policy through a memorandum to all federal prosecutors.

This means a defendant will not be forced to give up a claim that her lawyer provided ineffective assistance.

Early on, NACDL recognized this fundamentally unfair practice and the real problems it created for practitioners and clients. While generally occurring in federal cases, it also posed similar problems in state cases. Making its voice heard, NACDL authored and adopted Formal Opinion 12-02² on Oct. 27, 2012. The opinion determined that it is unethical for a prosecutor to suggest or a defense lawyer to agree that a defendant may waive IAC claims in plea agreements.

Shortly thereafter, the Kentucky Bar Association adopted Ethics Opinion E-435, which found the use of IAC waivers in plea agreements violates that state’s rules of professional conduct. And on Aug. 21, 2014, the Supreme Court of Kentucky, in United States v. Kentucky Bar Association,³ unanimously rejected a challenge by the federal government to Ethics Opinion E-435. Essentially agreeing with NACDL’s ethics opinion in all respects, the Kentucky Supreme Court concluded that employing IAC waivers in plea agreements violates the state’s rules of professional conduct because, among other things, the waivers create a nonwaivable conflict of interest between defendant and his attorney and they induce an ethical breach by defense counsel.

Given the high percentage of cases resolved by plea bargaining and the all too often trial penalty exacted upon defendants who exercise their right to trial, it was critical for NACDL to continue to “speak up,” be heard, and play a role in this important case. NACDL filed an amicus curiae brief in the case. In addition, NACDL Past President John Wesley Hall, an expert on criminal defense ethics, presented oral argument on behalf of amici to the Kentucky Supreme Court.

NACDL’s ethics opinion was a critical force in turning the tide of this improper practice. It provided strong ammunition for defense counsel to argue for the elimination of such waivers while at the same time trying to ensure that no harm would befall a client in any particular case. This was an extremely difficult dance to perform, not because there was any doubt as to the fundamental impropriety of the requested waiver, but rather counsel did not want to risk some benefit achieved at the risk of losing it all by requiring exclusion of the waiver. It remained an individualized decision for counsel and client, subject to differing practices throughout the country that were unequally applied and not uniformly addressed. While certain U.S. Attorney’s Offices made their own decision not to press for these waivers, the problem has been cured now that Attorney General Holder has issued a directive.

Now criminal defense lawyers can cite NACDL’s ethics opinion and the Holder directive when discussing the issue with both state and federal prosecutors. The NACDL opinion makes clear that it is unethical for a prosecutor to suggest or a defense lawyer to agree that a defendant may waive IAC claims in plea agreements. Formal Opinion 12-02 provides respected institutional authority as the basis for defense counsel’s assertion. No longer will the defense lawyer appear to be a lone thorn in the side of opposing counsel who is inclined to resolve a case favorably.

NACDL’s voice was expressed loudly and clearly when it (1) issued and then its Board of Directors passed Ethics Opinion 12-02, (2) actively entered and successfully litigated United States v. Kentucky Bar Association, and (3) assured this landmark decision was heard throughout the country in all jurisdictions, by all prosecutors, judges, lawyers and citizens alike when it issued a press release. I had the opportunity to make the following statement:

In a well written tour de force of state and federal jurisprudence, the Kentucky Supreme Court unequivocally and unanimously recognized the unsurprising proposition: that federal prosecutors must adhere to and be bound by the same ethical rules as defense lawyers. As such, the opinion, citing NACDL Board Policy as authority, makes clear it is unethical for a prosecutor to suggest or a defense lawyer to agree that a defendant may waive claims of ineffective assistance of counsel in plea agreements. On behalf of NACDL, I want to express my gratitude and pride in the work of both the Kentucky Bar Association and the NACDL team in this historic case.

When NACDL speaks, it speaks with the voice of the entire criminal defense bar: private and public attorneys; public defenders; private attorneys in service to the indigent; military defense counsel; and small, medium, and large firm practitioners. Together we have accomplished so much, but there is much more to do. Our voice will only continue to grow louder.⁴ NACDL is a big tent with a really big voice. Your voice.

NACDL, Amen!

Notes

1. Press Release, Department of Justice, Attorney General Holder Announces New Policy to Enhance Justice Department’s Commitment to Support Defendants’ Right to Counsel (Oct. 14, 2014) (available at http://www.justice.gov/opa/pr/attorney-general-holder-announces-new-policy-enhance-justice-departments-commitment-suppoet).
2. Read the NACDL ethics opinion at http://www.nacdl.org/resourcecenter/ethics.
3. United States v. Kentucky Bar Association, — S.W.3d —, 2014 WL 4159988 (Ky. Aug. 21, 2014).
4. Help to make our voice stronger and louder. Join me in growing the membership and further strengthening our Association and the defense bar. I am asking you to enlist just one new member, better more, but just one. Share this link with the defenders in your life who have not yet discovered NACDL — at http://www.nacdl.org/membership.

Theodore “Ted” Simon is an attorney in private practice in Philadelphia, Pa., where he has based a local, national, state, federal, and international trial and appellate practice representing individuals and corporations. He has obtained reversals in the U.S. Supreme Court and in the Pennsylvania Supreme Court. He is a leading authority on the representation of Americans abroad, extradition, and international prisoner transfer. He is a Trustee of the Foundation for Criminal Justice, and was Chair of the 2014 FCJ Awards Dinner. He is also a member of the Board of Directors of Philadelphia’s Jenkins Law Library, America’s first law library.

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