Committee on Professional Ethics – Ethics Opinion 1048

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NYSBA Committee on Professional Ethics –

Conflict of Interest

Waiver of Appeal – Ineffective Assistance of Counsel

Ethics Opinion 1048

Background: The inquiring criminal defense attorney states that the district attorney’s office conditions certain plea bargains on the defendant’s execution of a form in which the defendant waives challenges to the judge of conviction. The waiver is signed during the plea proceedings, in court, by the defendant and the defense attorney. Included in this waiver is the waiver of post-conviction motions which would include waiving a claim for ineffective assistance of counsel.

Opinion: The Committee concluded that a defense lawyer may advise the defendant as to a proposed plea agreement including waiver of challenges to the conviction based on ineffective assistance of counsel unless a reasonable lawyer would find a personal interest conflict of interest.  In case of such conflict, the lawyer may continue in the representation if the conflict is waivable and properly waived by the defendant, but otherwise must seek the court’s permission to withdraw from the representation.