Tuesday, September 27, 2011
Initial Florida Bar vote finds 2255 waivers unethical
Posted by David Oscar Markus
Last week, the Florida Bar's Professional Ethics Committee voted 13-11 that criminal defense lawyers could not ethically advise their clients to waive their 2255 (habeas) rights in a plea agreement. Staff from the Florida Bar will now draft an advisory opinion for the committee's consideration, and the committee will consider it at its next meeting (sometime next year). The government will oppose the proposed ethics opinion.
But why? Why do prosecutors attempt to have criminal defense lawyers waive their clients' 2255 rights in a plea agreement? How can a criminal defense ethically tell his client that the client should waive a claim that he (the lawyer) is ineffective? There are conflict issues both for the prosecutor and the defense lawyer here. And yet, the government pushes these waivers, forcing the lawyer in most cases to either plead straight up.
Judge Roettger was great on these issues. He never let a defendant waive his appellate rights. Back then prosecutors didn't ask for 2255 waivers (or Booker waivers). Judge Roettger would cross the appellate waiver out of the plea agreements and ask prosecutors whether they worked for the Department of Justice or Injustice. He asked them why shouldn't an appellate court review his rulings at sentencing. What if he made a mistake?
So, SDFLA readers, what do you think? Should the government be asking for 2255 (and other waivers) or is Judge Roettger (and the Florida Bar) right that these waivers are unethical.