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August 1, 2012
Ethics opinion takes dim view on plea waiver

If the deal prohibits the defendant from later raising claims of prosecutorial misconduct or ineffective assistance

By Gary Blankenship
Senior Editor

It is unethical for a prosecutor to offer and for a defense attorney to advise a client to accept a plea bargain that prohibits the defendant from later raising claims of prosecutorial misconduct and ineffective assistance of counsel by the defense attorney, according to the Professional Ethics Committee.

The committee reached that conclusion in the hotly debated issue with Proposed Advisory Opinion 12-1, adopted by a voice vote at its June 22 meeting at the Bar’s Annual Convention in Orlando.

The proposed opinion was published in the July 15 News as an official notice, and the ethics panel will consider comments at its September 21 meeting during the Bar’s Midyear Meeting. If the committee stands by the opinion at that meeting, it could then be appealed to the Bar Board of Governors.

The committee has been debating the matter for more than a year, prompted when a criminal defense lawyer asked the Bar about the ethical propriety of advising a client to accept a plea bargain offer that barred the defendant from future claims of prosecutorial misconduct or ineffective assistance of counsel.

The committee rejected a motion to have the opinion redrafted to say that the use of the waiver would have to be evaluated case by case, and the committee also declined to omit prosecutors from the final opinion.

Committee member Skip Smith noted the inquiry came from a defense lawyer, and, under its procedural rules, the committee can only address the prospective conduct of the inquiring lawyer and not conduct by other attorneys.

“Although it might be unseemly for the prosecutor to ask for something that might be a problem for the defense lawyer, I don’t think it’s the duty of the prosecutor to look out for the defense attorney,” he said.

“It’s clearly a conflict for the defense attorney to advise his clients to waive a claim for ineffective assistance of counsel, but the truth is the rule says if there’s a substantial risk of the advice affecting the material interest of the lawyer, that’s a matter of judgment. The lawyer is going to have to be accountable.”

“If we do this, it would be an exception. In this particular case, we would go outside our rules and address the conduct of someone other than the inquirer,” said committee member Ana Martinez, a Miami assistant U.S. attorney.

She also said that such waivers have been reviewed by numerous judges “who have said over the years that these types of waivers are good and effective and good for the administration of justice. We’re saying a prosecutor, just for asking for finality in a case, that is misconduct.”

Such waivers, Martinez said, are often used when prosecutors seek far less than the maximum penalty for a crime, so there is a tradeoff for defendants.

But committee member Richard Greenberg, a criminal defense lawyer and member of the Florida Association of Criminal Defense Lawyers, disagreed.

“The reason we need it is because in at least the Middle and Southern districts in federal court, the U.S. attorneys are seeking to include that language in the plea agreements, which puts the defense attorney in a conflict of interest situation with the client,” he said. “As some opinions from the U.S. 11th Circuit Court of Appeals have shown, it can be prejudicial to the defendant down the road.”

He also said it was proper to address prosecutorial actions in the opinion because it’s difficult to separate those while addressing defense counsel conduct.

“In the past, the committee has issued opinions that just go beyond one individual lawyer’s conduct,” Greenberg added. “The idea of a formal ethics opinion is to advise the Bar as a whole. Particularly in the situations like these plea agreements, the language at issue is coming from the prosecutors, so it seems like by default you have to include the prosecutors’ conduct in the opinion.”

The advisory opinion notes that several states have examined the issue and have concluded offering a waiver or advising a client to accept it is unethical. Some states have said it improperly limits the defense lawyers’ exposure to malpractice claims, and others have said defense lawyers have a personal interest that their services might be deemed ineffective.

Likewise, some states have said while it may not be directly improper for prosecutors to offer the waivers, it is improper for them to indirectly offer an inducement to defense attorneys to violate ethical rules. Others have said it’s wrong for prosecutors to potentially use the waivers to insulate their own improper behavior, and a Missouri ethics opinion held offering such a waiver is inconsistent with the prosecutor’s role and is prejudicial to the administration of justice.

The National Association of Criminal Defense Counsel, the opinion noted, has issued a proposed opinion that it is a conflict of interest for defense lawyers to advise a client to accept a waiver and also improperly limits lawyers’ malpractice liability. Arizona, unlike other states, said ineffective assistance of counsel is separate from malpractice issues and that waivers are not prohibited.

Texas is the only state that directly considered conflict of interest issues, and it concluded the question must be resolved case by case for defense attorneys. It also said the waiver does not insulate prosecutors from discipline if they, in fact, commit misconduct.

PAO 12-1 agrees with the majority of the opinions that the waivers affect malpractice claims and violate Rule 4-1.8(h), which prohibits agreements that may limit a client’s ability to pursue a malpractice claim unless the client has independent representation on the issue.

While the plea agreement is between the prosecutor and the defendant, and while ineffective assistance of counsel is different from malpractice, “a lawyer should not be permitted to do indirectly what the lawyer cannot do directly,” the opinion said. “A defense lawyer’s recommendation that a client waive a claim of ineffective assistance of counsel is akin to limiting malpractice liability, which is impermissible if the terms of the rule cannot be met.”

The opinion also noted that Rule 4-1.7(a)(2) prohibits an attorney from representing a client if that representation will be “materially limited . . . by a personal interest of the lawyer.”

The committee concluded the defense lawyer does have a personal interest in not having his or her conduct being determined as ineffective.

“This conflict is not one that the client should be asked to waive, as noted in the comment to Rule 4-1.7, which states: ‘when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client’s consent.’ A disinterested lawyer would be unlikely to reach the conclusion that the criminal defense lawyer could give objective advice about that lawyer’s own performance,” the opinion said.

As for prosecutors, the opinion said the committee agreed that offering such a waiver is both prejudicial to the administration of justice and assists defense lawyers in violating conduct rules. In some instances, prosecutorial misconduct, whether intentional or unintentional, may be known only to the prosecutor.

“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 opinion concluded.

[Revised: 07-31-2014]