July 30, 2015: Ethics Committee of New York State Bar Association Reviewing Opinion on Criminal Defense Waivers

The New York State Bar Association’s Committee on Professional Ethics has agreed to reconsider one of its advisory opinions at the request of criminal defense attorneys. 

Opinion 1048 concludes that there is no per se prohibition against a defense lawyer advising a criminal defendant about a proposed plea agreement that includes a client waiving his or her right to challenge the conviction in the future, based on ineffective assistance of counsel (IAC).  

The Committee on Professional Ethics will accept written comments from interested persons through September 20. The committee will review the comments at its October 21 meeting. Submissions may be sent to Kit McNary at kmcnary@nysba.org or NYSBA, 1 Elk Street, Albany, NY 12207. 

In its opinion, the ethics committee found that whether the defense lawyer has a personal conflict that prevents him or her from advising on the IAC waiver depends on if a reasonable lawyer would conclude there is a significant risk that the lawyer’s professional judgment on behalf of the client would be adversely affected by his or her personal interest in the client accepting the IAC waiver. 

That determination depends on factors such as  (1.) the likelihood that, in the absence of an IAC waiver,  the defendant would make an IAC challenge (for example, because counsel’s representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different); (2.) whether the sentence was severe; or (3.) whether there were significant collateral consequences, such as deportation.  

Opinion 1048 concludes that, even where the defense lawyer’s professional judgment may be adversely affected by the lawyer’s personal interest, in getting the client to agree to the IAC waiver, the lawyer may advise the client on accepting an IAC waiver if the lawyer reasonably believes that he or she will be able to provide competent and diligent representation to the defendant, and the defendant gives informed consent after the lawyer explains the material risks of agreeing to the IAC waiver (which may depend on the strength of the defendant’s IAC claim).  

The text of Opinion 1048, approved March 3, is available at  www.nysba.org/Ethics/.

The 74,000-member New York State Bar Association is the largest voluntary bar association in the nation.  It was founded in 1876.

Contact: Lise Bang-Jensen
Director of Media Services
lbang-jensen@nysba.org
518/487-5530