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Draft LEO calls plea bargain waiver unethical

A type of plea agreement familiar to Virginia federal prosecutors is unethical, according to a draft legal ethics opinion from the Virginia State Bar’s Committee on Legal Ethics.

The plea agreement at issue requires a criminal defendant to give up the right to later claim ineffective assistance of counsel. According to proposed LEO 1857, it is unethical for a prosecutor to offer a plea agreement with the waiver provision, and unethical for a defense lawyer to advise a client to accept such an agreement.

Advising a client to accept such a waiver creates a conflict, the VSB ethics committee said, because the lawyer “undoubtedly has a personal interest” in whether his representation has met the constitutional standard. The lawyer cannot reasonably be expected to give his client an objective evaluation of his work in an ongoing case, according to the draft LEO.

The VSB released the draft opinion earlier week and is inviting comments until July 1. The full text of the draft LEO is at the VSB website.

But it appears federal prosecutors in both the Eastern and Western Districts of Virginia have taken note of the issue and have modified standard plea agreement forms.

Timothy J. Heaphey, U.S. Attorney for the Western District, says the language in his office’s agreements at one time required a defense lawyer to advise a client to accept a plea with the waiver of an ineffective assistance claim.

Heaphey said Charlottesville defense attorney David L. Heilberg notified him about the ethical issue several months ago. The office agreed with Heilberg and decided to change the plea agreement form, Heaphey said.

The standard agreement now includes a general waiver of collateral attack but excludes a claim of ineffective assistance of counsel from the general waiver.

According to Rob Wagner, supervising public defender in the Richmond Office of the Federal Public Defender, the controversial waiver language is not included in plea agreements in the Eastern District. He said prosecutors proposed similar language several years ago but withdrew it after he and his colleague, Gerald Zerkin, raised ethical concerns.

The draft LEO acknowledges that federal courts, including the 4th U.S. Circuit Court of Appeals, have consistently held that such a provision can be legally enforced against a defendant.

“The fact that it’s enforceable doesn’t make it ethical,” said VSB Ethics Counsel James McCauley. “I’ll be interested to see what comments we get from the U.S. attorney’s offices and the commonwealth’s attorneys association.”

According to the proposed order, five states have considered the issue with four of the five – Missouri, North Carolina, Ohio and Vermont – concluding that such language is unethical. Arizona found it ethically permissible.
By Alan Cooper

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