19 www.loubar.org September 2026 to find and consult independent counsel.” Rule 1.8, ABA Model Rules, supra, Comment [18]. In a criminal case, an agreement not to sue counsel for malpractice, even when entered into in compliance with the ethical guidelines, would constitute a disqualifying conflict of interest. “A concurrent conflict of interest ex- ists if ... there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” Rule 1.7(a)(2), Conflict of Interest: Current Clients, ABA Model Rules, supra. Parenthetically, criminal defense attorneys in many venues are already protected from disappointed clients’ mal- practice suits by the exoneration doctrine. A number of jurisdictions in this country have adopted as a prerequisite to establishing a complaint for legal malpractice arising out of a criminal case that the plaintiff must prove that he or she was exonerated of the charges in the underlying criminal action. What the Kentucky Supreme Court explained about IAC waivers in guilty plea agreements and conflicts of interest is equally applicable to a criminal defense attorney requir- ing a client to sign an agreement not to sue for malpractice: When defense counsel is forced, through the introduc- tion of an IAC waiver in a plea agreement, to advise a client on the attorney’s own conduct, a personal inter- est certainly exists. An IAC claim is time consuming for an attorney, may tarnish the attorney’s professional reputation, may subject the attorney to discipline by the bar or courts, and may even have serious financial consequences for the attorney’s practice. US Ex Rel. US Attorneys v. Kentucky Bar Ass’n, 439 S.W.3d 136, 152 (Ky. 2014). All of these factors apply to a criminal defense attorney obtaining an agreement from his client not to sue him for legal malpractice except that it requires the lawyer to advise the client on counsel’s performance before it has even occurred. The conflict of interest is virtually the same. “[A] conflict exists when there is a ‘substantial risk’ of negatively impacting the client’s representation. This is true whether or not the ‘feared eventuality ever materializes.’” US EX REL. US ATTORNEYS, supra, 154. It is well recognized today that a criminal defense lawyer may not advise a client with regard to a plea agreement that waives the client’s right to pursue a claim of ineffective assistance of counsel as part of the waiver of the right to collaterally attack a conviction covered by the plea agree- ment. This issue has “been the subject of decisions by a number of state ethics committees, bar associations or similar authorities. The majority of these ethics decisions have stated that it is a violation of applicable ethics rules for an attorney to advise a criminal defendant about the propriety of entering into a plea agreement which waives the defendant’s right to seek post-conviction relief on the basis of an IAC claim.” Nebraska Ethics Advisory Opinion for Lawyers, Opinion No. 14-03. On October 14, 2014, Department of Justice Policy stated that federal prosecutors should “no longer seek in plea agreements to have a defendant waive claims of ineffective assistance of counsel, whether those claims are made on collateral attack, or, when permitted by circuit law, made on direct appeal.” That policy also held that where such waivers had already been entered, federal prosecutors should “decline to enforce the waiver when defense coun- sel rendered ineffective assistance resulting in prejudice or when the defendant’s ineffective assistance claim raises a serious debatable issue that a court should resolve.” What had been a prevalent practice in guilty plea agree- ments in federal courts and to a lesser extent in state courts is now almost universally condemned as unethical. Criminal defense attorneys were ethically prohibited from counseling a criminal defendant to waive a future IAC claim in a guilty plea agreement because it would be a conflict of interest for counsel to do so. “The primary duties that defense counsel owe to their cli- ents, to the administration of justice, and as officers of the court, are to serve as their clients’ counselor and advocate with courage and devotion; to ensure that constitutional and other legal rights of their clients are protected; and to render effective, high-quality legal representation with integrity.” Standard 4-1.2(b), Functions and Duties of Defense Counsel, ABA Criminal Justice Standards for the Defense Function, Fourth Edition (2017). The conflict of interest arising out of a criminal defense attorney obtaining an agreement from a client not to sue counsel for legal malpractice is obvious. The attorney’s interest is in avoiding a malpractice lawsuit and that con- flicts with the client’s interest to have a potential remedy for his lawyer’s deficient legal representation. Such an agreement barring a client from suing counsel is at least a subconscious disincentive to provide the best possible representation as the threat of professional accountability is significantly reduced. As the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 692 (1984), explained: One type of actual ineffectiveness claim warrants a similar, though more limited, presumption of preju- dice. In Cuyler v. Sullivan, 446 U.S., at 345-350, the Court held that prejudice is presumed when counsel is burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel’s duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts, see, e.g., Fed. Rule Crim. Proc. 44( c), it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest. Criminal defense counsel should avoid trying to insulate themselves from legal liability by securing agreements from their clients prohibiting legal malpractice suits for the representation provided as there is a very strong possibility that such an agreement will constitute a dis- qualifying conflict of interest for the lawyer. Criminal defendants have the right to expect their lawyers will rep- resent them knowing if the representation is deficient it can be reviewed by either an IAC claim in post-conviction proceedings or in malpractice litigation. Defense Counsel’s Efforts to Insulate Themselves From Liability and Conflicts of Interest, J. Vincent Aprile II, © Published in Criminal Justice, Vol. 41, No. 01, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means stored in an electronic database or retrieval system without the express consent of the American Bar Associa- tion or the copyright holder. Vince Aprile, JD, LLM, began his legal career as a Captain in the Army Judge Advocate General’s Corps, where he did trial and appellate work (1969-1973). He then was a public defender with the Kentucky Department of Public Advocacy, where he served as the agency’s inaugural director of the appellate division and general counsel (1973-2003). He has argued four cases in the U.S. Supreme Court, winning two. Vince has taught lawyers in CLE presentations and advocacy programs in more than 35 states, Canada, Puerto Rico and Russia (Moscow and St. Petersburg). His column, Criminal Justice Matters, has been published as a regular feature of the ABA’s Criminal Justice magazine for 34 years (1992 to present). Since 2003, Vince has practiced law with Lynch, Cox, Gil- man & Goodman, PSC. n (Continued from previous page)
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