Friday, July 12, 2019
Skylar Croy has posted When 'Ministers of Justice' Violate Rules of Professional Conduct During Plea Bargaining: Contractual Consequences (Georgetown Journal of Legal Ethics, Forthcoming) on SSRN. Here is the abstract:
As an anecdote, this Article primarily examines waivers of the right to collateral attack.
A broadly worded waiver of the right to collateral attack includes a waiver of the right to claim ineffective assistance of counsel. Bar associations have found, generally, that a defense attorney cannot advise his or her client to accept such a waiver. Prosecutors, under the rules of professional conduct, cannot induce or attempt to induce a violation of the rules. As such, if a prosecutor makes an offer with a broadly worded waiver of the right to collateral attack, he or she has violated a rule of professional conduct.
In the criminal context, in particular, the state interest in enforcing rules of professional conduct is substantial. Doing so not only protects the public but also encourages trust in the criminal justice system and the legal profession more generally. Provisions of plea agreements that are made through a bargaining process that violates a rule, therefore, cannot be enforced.