Tuesday, April 11, 2017

Thinking of waiving appellate rights? Think again, says the KBA

Last month, the Kansas Bar Association issued an ethics opinion (KBA Legal Ethics Opinion No. 17-02) concluding that "[i]t is unethical and inappropriate for defense attorneys and prosecutors to request a criminal defendant to waive or release claims (a) that the defense lawyer’s assistance was ineffective; or (b) that the prosecutor committed misconduct in the case in which a plea is to be entered."

This is a good reminder to check those plea agreements and make sure that---whatever other waivers they contain---they cannot be read to waive misconduct or IAC claims. And it's a good reminder, too, that all appeal and postconviction waivers in plea agreements are discretionary and negotiable. Waivers might be limited in scope by excluding, for example, constitutional sentencing claims, plain guideline error, and sentence-reduction motions based on future retroactive guideline amendments. When we ask a client to waive appellate rights, we should consider the scope of that waiver and be sure that the client is securing a real benefit in return.

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