Prosecutors Seeking Ineffectiveness Waivers Face Ethical Risks

Criminal defense attorneys have noted an increasing effort by prosecutors to have criminal defendants waive ineffectiveness claims when negotiating pleas. But in a countervailing trend, Tennessee recently joined the District of Columbia and North Carolina in permitting criminal defense counsel alleged by a former client to have provided ineffective assistance of counsel to voluntarily provide information to prosecutors. Rejecting the approach advocated by the ABA, the decision provides criminal defense counsel discretion to determine whether disclosure is "necessary . . . to respond to allegations in any proceeding concerning the lawyer's representation of the client." R.P.C. 1.6(b). The decision circumscribes what a lawyer may disclose: only such information necessary to respond to the allegations or information "generally known." But the decision does not require criminal defense counsel to wait until in-court proceedings to provide such information.

The decision likely detracts from prosecutors' efforts to obtain waivers of ineffective assistance of counsel claims from defendants when negotiating pleas in criminal cases. Prosecutors justify the uptick in their efforts to seek waivers by pressing the government's interest in finality. The government's lawyers are also undoubtedly concerned about the potential for more difficult ineffectiveness claims following Frye and Lafler. Missouri v. Frye, 132 S. Ct. 1399 (2012); Lafler v. Cooper, 132 S. Ct. 1376 (2012). But some states have found that these prosecutorial efforts interject a conflict between defense counsel and the criminal defendant. See, e.g., Florida Professional Ethics Opinion 12-1 (June 22, 2012). Moreover, those states have found that seeking such waivers constitutes prosecutorial misconduct. Id. Tennessee Bar Counsel's decision represents an approach, grounded in the ethics rules, that lessens the force of prosecutors' finality arguments by giving prosecutors the opportunity to quickly ascertain whether an ineffectiveness claim is frivolous (lessening the burden of such claims and thereby strengthening finality). This approach is consistent with preserving the attorney-client privilege and with the conclusion that waiver requests constitute prosecutorial misconduct.

The Tennessee Board of Professional Responsibility's decision is Formal Ethics Opinion 2013-F-156 and may be found...