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An ethical conundrum: Counseling a client on waiving an ineffective assistance of counsel claim
By Douglas A. Morris
Broadly, the Sixth of Amendment of the Constitution guarantees that in all criminal prosecutions, where the defendant faces a term of imprisonment, the defendant has a right to the effective assistance of counsel.1 Correspondingly, criminal defendants also have a right to the effective assistance of counsel on appeal.2 Be that as it may, as part of the plea bargaining process, the Office of the United States Attorney General has increasingly been attempting to get defendants to waive their right to appeal, inter alia, claims of ineffective assistance of counsel that occurred during the guilty plea or at sentencing.3 It is clear that the court’s precedent allows defendants to waive constitutional rights.4
The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused – whose life or liberty is at stake – is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial ju
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