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.
I think appellate/2255 waivers put criminal defense lawyers in a very difficult position of conflict of interest, especially waiving issues on their own effectiveness. I dislike such waivers, and enter into them when I only believe the alternative will assuredly be worse for the client. In the past, there were prosecutors who would agree to more narrowly tailor appellate waivers. For instance, the waiver would be for all issues in a sentencing except if the Judge failed to follow the recommendations of the parties regarding Guidelines levels, or enhancements, etc.. In that instance, the defendant could appeal the sentence. Now, most appellate waivers force the defendant to waive all issues except for sentences above the statutory maximum, which, in my experience, never happens.
ReplyDeleteIsn't it interesting that this post appears right above the post about dwindling trials due to the very many risks involved in challenging the government's case at trial: additional charges lodged if a pre-trial motion is filed (I think you DOM might be familiar with that) and recommendations for high-end or above guideline range in the event of a conviction. I can't remember how long ago Judge Roetgger died but it was a while ago and this matter has been revisited with every new administration: why is the Florida Bar suddenly so concerned? Where were they when the guidelines were deemed mandatory - or even - before Safety Valve? Just saying.....
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