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January 1, 2013
Board adopts hotly debated plea bargain ethics opinion

At issue are plea bargains prohibiting claims of ineffective assistance or prosecutorial misconduct

By Gary Blankenship
Senior Editor

Representatives from all three of Florida’s U.S. attorney offices traveled to Amelia Island last month with a simple goal: convince a Bar Board of Governors committee and then the board itself to reject a proposed ethics opinion that a waiver used in some plea bargains is unethical for both defense attorneys and prosecutors.

They had little success. After more than 90 minutes of debate, the Board Review Committee on Professional Ethics voted on December 6 to recommend Proposed Advisory Opinion 12-1 by a 7-0 vote. On the following day, the Board of Governors without discussion accepted the BRCPE advice with only a few dissenting votes.

At issue was the practice — commonly used by some U.S. attorney offices and rarely in others — of adding a condition to plea bargains prohibiting the defendant from later raising a claim of ineffective assistance of counsel or prosecutorial misconduct.
“It goes too far,” said Southern District U.S. Attorney Wildredo Ferrer. “It is basically an absolute prohibition that is being addressed in the [advisory] opinion. I think the analysis has detrimental consequences to all of the guilty pleas we enter,” Ferrer said.

He added that 97 percent of federal cases and 94 percent of state court cases are settled with plea bargains.

Ferrer and other opponents of the opinion raised several points:

* The opinion affects only sentencing in guilty pleas, since a guilty plea effectively carries such a waiver for all actions up until the plea.

* Such waivers have been upheld as legally valid in the 11th U.S. Circuit Court of Appeals and other federal courts.

* The opinion should be applied case by case, and there is no conflict for defense attorneys who believe they have done a thorough job. “There is a conflict when an attorney believes that he or she has been ineffective, and they know that and they are trying to hide it by making the client sign a waiver. That’s a situation we don’t want,” Ferrer said.

* The defense attorney is not part of the plea agreement, because legally it is an agreement between the prosecutor and the defendant.

* The waivers can be attacked afterward if they cause a “manifest injustice,” and that protects defendants.

* The waivers can be a significant bargaining chip for defendants in seeking reduced charges and sentences in a plea agreement.

David Rhodes, appellate chief for the Middle District U.S. Attorney’s Office, told the BRCPE that case law requires that judges explain to defendants exactly what they are giving up with the waivers.

“All guilty pleas waive pre-plea claims of prosecutorial misconduct, because at the point you enter the guilty plea you’re saying, ‘I’m guilty,’” said Eduardo Sanchez, an assistant U.S. attorney in the Southern District.

“What has gone on before doesn’t matter.”

On the other side, criminal defense attorney and former Bar President Hank Coxe said there is no way to avoid the possibility a defense attorney could use a waiver to obscure his or her own bad actions. While courts may have addressed the legality of the waivers, he argued, it is still the Bar’s duty to weigh the ethical issues.

“The long and short of it is: Can a lawyer advise a client to do something that is presumably in the client’s best interest when actually it is in the lawyer’s best interest?” he said.

The waivers would protect an attorney who did no work before sentencing, even if the attorney would have discovered evidence that would mitigate the client’s sentence, Coxe said, and in those cases the client would be barred from claiming ineffective assistance of counsel.

“What I’m hearing is this is a good reason not to have the ethics opinion because we eliminate all of the claims [of ineffective assistance or prosecutorial misconduct]. But when we eliminate all of the claims, we eliminate the valid claims in return for finality,” he said. “We shouldn’t be trading finality and convenience for clients’ rights.”

Southern District Public Defender Michael Caruso said prosecutors hold huge advantages in plea negotiations.

“Plea bargaining is not give and take. The government has tremendous leverage over the defense bar and clients,” he said. “It’s more a take-it-or-leave-it situation, and more often than not with certain prosecutors it will be leave it unless your client waives all of his collateral rights. These concerns should not trump a criminal defense lawyer’s responsibilities.”

Supporters of the opinion also noted that the Professional Ethics Committee devoted hours of debate and study to the issue before overwhelmingly approving Proposed Advisory Opinion 12-1.

In their debate after the presentations, committee members said they were concerned with lawyers advising clients about an action regarding the lawyer’s own conduct and responsibilities.

“We as lawyers should not advise clients to waive claims against ourselves, which is what this is,” said board member Bill Davis, just before the committee voted unanimously to recommend approving PAO 12-1.

At the board meeting, BRCPE Chair Carl Schwait laid out the issues, and noted the committee’s extensive debate, as well as hundreds of pages of correspondence received on the issue. The board, by voice vote, then approved the opinion.

The opinion notes most states — with the exception of Texas — that have examined the issue found the waivers impermissible from a conflict of interest standpoint, with some indicating that it was an improper waiver of future malpractice. Texas held the lawyer must decide the issue case by case.

“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,” according to the opinion.

It also said defense lawyers have a conflict under Rule 4-1.7(a)(2) 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 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 can be found on the Bar’s in the ethics opinion section.

[Revised: 11-19-2017]