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December 1, 2012
Board to discuss plea bargains, ethics, and legislative issues

By Gary Blankenship
Senior Editor

An appeal of a proposed ethics opinion which says it is unethical for prosecutors to offer and defense attorneys to recommend their clients accept plea bargains that prohibit later claims of prosecutorial misconduct or ineffective assistance of counsel could reach the Bar Board of Governors at its December 7 meeting.

All three U.S. attorneys in Florida have appealed a vote of the Professional Ethics Committee last June to approve Proposed Advisory Opinion 12-1.

The PEC considered comments on that opinion when it met again in September, but decided to make no changes, clearing the way for the appeal to go to the board.

Aside from the ethics matter, the board will also get a report about carrying out communications-related recommendations from the Hawkins Commission, work on legislative issues, and make several appointments.

The Board Review Committee on Professional Ethics, which meets the day before the Board of Governors’ meeting, will initially consider the appeal of PAO 12-1.

If the committee completes its deliberations, then it will present its findings to the board the next day. But it is not certain that will happen; the PEC spent more than a year deliberating the issue, including almost three hours of debate before its June vote.

The ethics opinion began with an inquiry from a defense lawyer on whether it was ethical to advise a client to accept a plea bargain that waived the defendant’s right to later raise a claim of ineffective assistance of counsel. The lawyer also asked about the propriety of a prosecutor offering a plea agreement that barred the defendant from any future claim of prosecutorial misconduct.

Over the objections of prosecutors, especially from the U.S. attorneys’ offices, the PEC eventually concluded — as have most other states that have looked at the issue — that such waivers are ethically impermissible.

Defense lawyers have a conflict under Rule 4-1.7(a)(2), PAO 12-1 said, because, “The lawyer has a personal interest in not having the lawyer’s own representation of the client determined to be ineffective under constitutional standards. This conflict is not one that the client should be asked to waive . . . .”

As for prosecutors, “The committee agrees with those states that find that the conduct is impermissible as both prejudicial to the administration of justice and assisting the criminal defense lawyer in violating the Rules of Professional Conduct under Rule 4-8.4(d) and 4-8.4(a), Rules Regulating The Florida Bar,” the opinion said.

“The committee’s opinion is that it is prejudicial to the administration of justice for a prosecutor to require the criminal defendant to waive claims of prosecutorial misconduct when the prosecutor is in the best position, and indeed may be the only person, to be aware that misconduct has taken place.”

The entire text of the opinion can be found on the Bar’s .

The Communications Committee has been working to carry out recommendations of the Hawkins Commission, which earlier this year completed a comprehensive review of the Bar’s discipline system.

Among its recommendations are to have speakers appear before judicial conferences of federal and state district courts of appeal, circuit, and county to talk about the grievance system, adding a short commentary on the Bar and the discipline system.

Another recommendation relates to an upcoming online CLE seminars that will include the importance of lawyers reporting the unethical conduct of other lawyers, trust accounting, and an overview of the Bar’s grievance system.

The committee is also looking to consolidate on one page of the Bar’s website information about the grievance process, now located in various parts of the site. Information about the Attorney Consumer Assistance Program, forms for filing grievances, alternatives to discipline, and recent disciplinary news releases would be included.

The Communications Committee also will report on developing the next “app” for smart phones, which will be aimed at allowing Florida lawyers to find and contact each other. The application is expected to work like a simplified version of the Bar’s Find a Lawyer service on its website. The app will be designed to run easily on smart phones and other portable communications devices.

On a related communications issue, the board will receive a report on “The Vote’s In Your Court” program to educate voters about the merit retention process for district court of appeal judges and Supreme Court justices.

The Legislation Committee, which at the board’s October meeting recommended that the Bar oppose constitutional Amendment 5 on the November ballot (see story on page 1), is expected to recommend some Bar legislative positions from the 2010-12 biennium, which automatically sunset last summer.

That review will likely include long-standing Bar opposition to any constitutional amendment to alter the Supreme Court’s oversight of the legal profession and continued support for adequate funding for the court system and related agencies.

The board will make several appointments:

* One lawyer of the U.S. Southern District of Florida to the U.S. 11th Circuit Judicial Conference.

* Five lawyers, one from each district court of appeal district, for two-year terms on the Florida Realtor-Attorney Joint Committee.

* One lawyer for a three-year term on the Florida Rural Legal Services Board of Directors.

* Three lawyers for terms on the Florida Judicial Qualifications Commission, two for six-year terms and one for a partial three-year term.

[Revised: 04-07-2017]