Ohio Board Advisory Opinion Op 01-006

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 2320, COLUMBUS, OH 43215-6104
(614) 644-5800 (888) 664-8345 FAX: (614) 644-5804
www.sconet.state.oh.us
OFFICE OF SECRETARY
OPINION 2001-6
Issued December 7, 2001
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded
by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]
SYLLABUS: It is unethical under the Ohio Code of Professional Responsibility for a
prosecutor to negotiate and a criminal defense attorney to advise a defendant to enter a
plea agreement that waives the defendant’s appellate or postconviction claims of
ineffective assistance of trial counsel or prosecutorial misconduct.
OPINION: This opinion addresses the ethical propriety of a prosecutor negotiating and
a criminal defense attorney advising a defendant to enter a plea agreement that contains
provisions waiving claims of ineffective assistance of counsel and prosecutorial
misconduct. This opinion does not address whether such waivers are legal or
constitutional.
Is it unethical for a prosecutor to negotiate and a criminal defense attorney
to advise a defendant to enter a plea agreement that waives the defendant’s
appellate or postconviction claims of ineffective assistance of trial counsel
or prosecutorial misconduct?
Waiver of claims of ineffective assistance of counsel
DR 6-102(A) of the Ohio Code of Professional Responsibility prohibits a lawyer from
attempting to exonerate himself or herself from liability for personal malpractice.
DR 6-102(A) A lawyer shall not attempt to exonerate himself [herself]
from or limit his [her] liability to his [her] client for his [her] personal
malpractice.
EC 6-6 echoes the rule. “A lawyer should not seek, by contract or other means, to limit
his [her] individual liability to his [her] client for his [her] malpractice. A lawyer who
handles the affairs of his [her] client properly has no need to attempt to limit his [her]
liability for his [her] professional activities and one who does not handle the affairs of his
[her] client properly should not be permitted to do so.
At first reading of DR 6-102(A), one might question why a waiver of claims of
ineffective assistance of trial counsel might be considered an unethical attempt by an
attorney to limit his or her liability for personal malpractice.

Op. 2001-6 2
A cause of action for legal malpractice is distinct from an action to vacate a criminal
judgment based on ineffective assistance of counsel.
An action to vacate a criminal judgment based on ineffective assistance of
counsel is not the same as a cause of action for legal malpractice. A claim
of ineffective assistance of counsel is based on constitutional guarantees
and seeks reversal of a criminal conviction. Legal malpractice is a
common-law action, grounded in tort, which seeks monetary damages.
The proof of either of these two causes of action does not necessarily
establish the other.
Krahn v. Kinney, 43 Ohio St. 3d 103, 107 (1989).
Further, in Ohio postconviction relief is not required to bring a legal malpractice action.
[W]e hold that a plaintiff need not allege a reversal of his or her conviction
in order to state a cause of action for legal malpractice arising from
representation in a criminal proceeding. To plead a cause of action for
attorney malpractice arising from criminal representation, a plaintiff must
allege (1) an attorney-client relationship giving rise to a duty, (2) a breach
of that duty, and (3) damages proximately caused by the breach.
Id. at 106.
Yet, there is a nexus between the two. Reversal of a conviction while not necessary to
state a cause of action for legal malpractice, may help establish the element of proximate
cause in a legal malpractice action.
Having enunciated the elements of a claim sounding in malpractice and
arising from criminal representation, we note that in most cases the
failure to secure a reversal of the underlying criminal conviction may
bear upon and even destroy the plaintiff’s ability to establish the
element of proximate cause.
Id. at 106. (Emphasis added).
Thus, in Ohio, under Krahn v. Kinney, a reversal of a conviction is not a prerequisite for
stating a cause of action for legal malpractice; however, failure to obtain a reversal may
bear upon or even destroy a malpractice plaintiff’s ability to establish the proximate
cause element of a claim sounding in malpractice. Id. at 106, 107.
While waiver of claims of ineffective assistance of counsel does not eliminate the
opportunity for a criminal defendant to bring a legal malpractice action against a criminal
defense attorney, it significantly limits and may even destroy the defendant’s ability to
establish proximate cause, a necessary element of a legal malpractice claim. Given this
relationship, it is the Board’s view that a plea agreement provision that waives appellate
or postconviction claims of ineffective assistance of counsel does constitute an attempt to
limit the liability of the criminal defense attorney for personal malpractice.

Op. 2001-6 3
Waiver of claims of prosecutorial misconduct
Under DR 7-103, a prosecutor has special ethical duties.
DR 7-103
(A) A public prosecutor or other government lawyer shall not institute or
cause to be instituted criminal charges when he [she] knows or it is
obvious that the charges are not supported by probable cause.
(B) A public prosecutor or other government lawyer in criminal litigation
shall make timely disclosure to counsel for the defendant, or to the
defendant if he [she] has no counsel, of the existence of evidence, known
to the prosecutor or other government lawyer, that tends to negate the guilt
of the accused, mitigate the degree of the offense, or reduce the
punishment.
EC 7-13 elaborates upon the duties of a prosecutor.
EC 7-13 The responsibility of a public prosecutor differs from that of the
usual advocate; his [her] duty is to seek justice, not merely to convict.
This special duty exists because; (1) the prosecutor represents the
sovereign and therefore should use restraint in the discretionary exercise
of governmental powers, such as in the selection of cases to prosecute; (2)
during trial the prosecutor is not only an advocate but he [she] also may
make decisions normally made by an individual client, and those affecting
the public interest should be fair to all; and (3) in our system of criminal
justice the accused is to be given the benefit of all reasonable doubts.
With respect to evidence and witnesses, the prosecutor has responsibilities
different from those of a lawyer in private practice; the prosecutor should
make timely disclosure to the defense of available evidence, known to him
[her] that tends to negate the guilt of the accused, mitigate the degree of
the offense, or reduce the punishment. Further a prosecutor should not
intentionally avoid pursuit of evidence merely because he [she] believes it
will damage the prosecution’s case or aid the accused.
In addition to these special duties, prosecutors, like other lawyers, are bound by other
rules within the Ohio Code of Professional Responsibility. DR 7-102 requires
representation within the bounds of the law. DR 1-102(A)(5) prohibits engaging in
conduct that is prejudicial to the administration of justice.
Prosecutorial misconduct may involve violations of disciplinary rules that may come to
the judge’s attention and be reported to disciplinary authorities pursuant to Canon 3(D)(2)
of the Code of Judicial Conduct and DR 1-103(A). A prosecutor should not attempt
through a plea agreement to excuse himself or herself from following disciplinary rules
governing a prosecutor’s behavior. A prosecutor does not serve justice by attempting to
shield his or her past or future misconduct from scrutiny by obtaining a criminal
defendant’s waiver of appellate or postconviction claims based on allegations of

Op. 2001-6 4
prosecutorial misconduct. This Board’s view is that waiver of appellate or
postconviction claims of prosecutorial misconduct is an improper attempt to insulate the
prosecutor from his or her duties under DR 7-102, 7-103, and DR 1-102(A)(5) of the
Ohio Code of Professional Responsibility.
Views from other states
North Carolina and Tennessee advise that it is ethically improper for prosecutors and
criminal defense attorneys to negotiate plea agreements that waive allegations of
ineffective assistance of counsel or prosecutorial misconduct.
North Carolina State Bar, Revised Op. RPC 129 (1993). Prosecutors and
defense attorneys may negotiate plea agreements waiving appellate and
postconviction rights, except in regard to allegations of ineffective
assistance of counsel or prosecutorial misconduct.
Bd of Professional Responsibility, Sup Ct Tennessee, Op. 94-A-549
(1994). Neither a prosecutor nor a defense counsel can ethically include a
provision in a plea agreement that waives the defendant’s right to allege
ineffective assistance of counsel or prosecutorial misconduct.
Arizona presents a fractured view.
State Bar of Arizona Op. 95-08 (1995). A prosecutor and defense counsel
may enter into a plea agreement whereby the defendant waives
postconviction and collateral right, including a defendant’s right to later
allege ineffective assistance of counsel lawyer. (A minority of the
committee expressed a dissenting view that by participating in a plea
agreement waiving a defendant’s right to allege ineffective assistance of
counsel, a criminal defense counsel violates the ethical rule that prohibits
attempts to limit liability for malpractice.)
Summary of this Board’s view.
First, given that failure to obtain a reversal of a criminal conviction may bear upon or
even destroy a legal malpractice plaintiff’s ability to establish the proximate cause
element of a claim sounding in malpractice, it is the Board’s view that waiver of appellate
or postconviction claims of ineffective assistance of counsel does constitute under DR 6-
102(A) an improper attempt to limit the liability of the criminal defense attorney for
personal malpractice. Second, given the duties of a prosecutor, waiver of appellate or
postconviction claims of prosecutorial misconduct is an improper attempt to insulate the
prosecutor from properly fulfilling his or her duties under DR 7-102, 7-103, and DR 1-
102(A)(5) of the Ohio Code of Professional Responsibility.
In conclusion, the Board advises that it is unethical under the Ohio Code of Professional
Responsibility for a prosecutor to negotiate and a criminal defense attorney to advise a
defendant to enter a plea agreement that waives the defendant’s appellate or
postconviction claims of ineffective assistance of trial counsel or prosecutorial
misconduct.

Op. 2001-6 5
Advisory Opinions of the Board of Commissioners on Grievances and Discipline are
informal, nonbinding opinions in response to prospective or hypothetical questions
regarding the application of the Supreme Court Rules for the Government of the
Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the
Code of Professional Responsibility, the Code of Judicial Conduct, and the
Attorney’s Oath of Office.