This Article argues that when a prosecutor—a “minister of justice”—violates a rule of professional conduct during plea bargaining, provisions of the agreement that are the product of the violation are likely unenforceable. Violating a rule of professional conduct is usually against public policy, and plea agreements, like all contracts, are enforceable only to the extent that enforcement does not contradict public policy.

As an example, this Article primarily examines waivers of the right to collateral attack. A broadly worded waiver of the right to collateral attack includes a waiver of the right to claim ineffective assistance of counsel. Bar associations have concluded, generally, that a defense attorney cannot advise his or her client to accept such a waiver. Prosecutors, under the rules of professional conduct, cannot induce or attempt to induce a violation of the rules. As such, if a prosecutor makes an offer with a broadly worded waiver of the right to collateral attack, he or she has violated a rule of professional conduct.

The state has a substantial interest in enforcing the rules of professional conduct. Doing so not only protects the public but also encourages trust in the criminal justice system and the legal profession more generally. Provisions of a plea agreement that are made through a bargaining process that violated a rule, therefore, cannot be enforced.

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