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Department of Justice Sets New Policy on Ineffective Attorney Claims

In a new policy announced on October 14, 2014, the U.S. Department of Justice says an individual who takes a plea cannot waive a potential ineffective assistance claim against his or her legal counsel by doing so. The policy is effective immediately. 

This means federal prosecutors can no longer include such waiver language in plea bargain documents and that waivers in earlier documents that have already been signed should not be enforced. Before this week, 35 of the Justice Department's 94 U.S. attorney's offices still used the waiver, the Washington Post reported.

"Everyone in this country who faces criminal legal action deserves the opportunity to make decisions with the assistance of effective legal counsel," said Attorney General Eric H. Holder Jr. in a DOJ press release. "Under this policy, no defendant will have to forgo their right to able representation in the course of pleading guilty to a crime."

"In order for the justice system to work, we need to promote respect for the rules and integrity in those who enforce them," commented Firm partner, Vikas S. Dhar, on the DOJ's decision. "With so many Federal criminal cases being decided by guilty pleas, the DOJ's routine use of waivers of ineffective assistance of counsel can create a conflict of interest and insulate attorney conduct from judicial review."

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