Advising your client to waive future ineffective assistance claims

When the prosecutor offers your client a plea on condition that he waive any possible ineffective assistance claim against you, what should you do?  Why, just put a pen in his hand and show him where to sign, according to a recent ethics opinion by the NY State Bar Association.

But isn’t that a teeny bit of a conflict of interest? you ask. To advise your client to waive her constitutional right to effective assistance of counsel when you’re the counsel? Not at all! says the Ethics Committee. If you haven’t been ineffective, then you’re just giving your client good advice!

But ineffective assisters of counsel don’t know they’re ineffective. That’s why they’re ineffective!  They didn’t know that sweet plea deal came with deportation on the side.  They didn’t realize they should have looked at the lab report or talked to that witness or figured out whether the statute of limitations bars prosecution of that 40-year old offense.

Scene: Courtroom.  

A.D.A. Tightskirt:  We’re offering a plea to 20 years on condition that the defendant waive his right to appeal anything whatsoever in any case past, present or future including ineffective assistance of counsel.

Client: (to lawyer) 20 years just for drinking beer in front of my house? That don’t sound right to me.

Lawyer: Believe me, Mr. Jones, this is a fabulous deal.  You could get life without parole as a mandatory persistent felon if you’re convicted at trial.

Client: I’m not Jones, I’m Prendergast! This is my first arrest!

Lawyer: Whatever. Sign here.

Judge: Sir! Has your attorney explained to you that a condition of pleading guilty is that you can’t challenge the effectiveness of his representation?

Client: You mean I have to take his word for it that he hasn’t been ineffective?

Judge: How dare you question your lawyer’s competence! Mr. Layback is a seasoned, experienced attorney who’s been coming before me for years and is deeply mindful of the importance of clearing my calendar. Plus, we play golf together. The reason he can tell you he’s not ineffective is that he isn’t ineffective. It’s only if he were ineffective that he would have to tell you he’s ineffective.

Client: Huh?

Judge: That’s exactly why you need to rely on Mr. Layback’s legal advice!  As an ignorant layperson, you can’t possibly be expected to understand the law.