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Florida Bar Ethics opinion finds that offer and recommendation of waiver of ineffective assistance and prosecutorial misconduct for criminal plea is unethical

Hello and welcome to this Ethics Alert which will discuss the Proposed Advisory Opinion which was recently issued by the Professional Ethics Committee of The Florida Bar which found that that offering and recommending plea where defendant waives ineffective assistance and prosecutorial misconduct claims is unethical.  The link to the proposed advisory opinion is here:  Florida Bar Proposed Ethics Advisory Opinion 12-1.

The Professional Ethics Committee of The Florida Bar (PEC) met on June 22, 2012 and approved Proposed Advisory Opinion 12-1 regarding the ethical propriety of waivers of ineffective assistance of counsel and prosecutorial misconduct in criminal pleas.  The PEC considered the issue after a Florida lawyer requested an opinion.  The opinion initially notes that whether a particular plea agreement is lawful, enforceable and meet constitutional requirements is a legal question outside the scope of an ethics opinion; however, after reviewing the ethics issues, the PEC agreed with the majority of states which have found that it is improper for the prosecutor to make such an offer and for the defense lawyer to advise the client on accepting such an offer.

The opinion refers to Florida Bar Rule 4-1.8(h) regarding agreements limiting a lawyer’s liability for malpractice which states: “(h) Limiting Liability for Malpractice. A lawyer shall not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement.  A lawyer shall not settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith.”

According to the opinion, since this plea agreement is between the prosecutor and the defendant and an ineffective assistance of counsel claim is not a malpractice claim, on its face, Bar Rule 4-1.8(h) does not prohibit advising a criminal defense client to enter a plea agreement that waives the client’s right  to claim ineffective assistance of counsel in a collateral proceeding; however, “a lawyer should not be permitted to do indirectly what the lawyer cannot do directly” and a defense lawyer’s recommendation that a client waive ineffective assistance claims is analogous to limiting malpractice liability, which is prohibited unless the requirements of this rule are met (i.e. the client is independently represented in making the agreement and/or the lawyer advises the person in writing that independent representation is appropriate in connection therewith).

In addition, unlike malpractice liability, which is a type of conflict that may be waived under specific circumstances with independent representation, the opinion found that the personal conflict created by such a plea agreement cannot be waived because of the adverse interests that it creates.  In concluding that a defense lawyer has a personal conflict of interest when advising a client a potential waiver of the right collateral proceedings regarding ineffective assistance of counsel and also a personal interest in not having the lawyer’s own representation of the client determined to be ineffective under constitutional standards. the opinion quoted Rule 4-1.7(a)(2), which provides as follows:  “(a) Representing Adverse Interests.  Except as provided in subdivision (b), a  lawyer shall not represent a client if: *** (2) there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”

According to the opinion, this conflict is also not one in which the client should be asked to waive and pointed to the comment to Rule 4-1.7 which states that: “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.”  Further, a disinterested lawyer would be unlikely to conclude that the criminal defense lawyer could give objective advice about that lawyer’s own performance.

With regard to the prosecutor’s conduct in offering the plea agreement, the opinion aligns Florida with other states which have found that such an offer is prejudicial to the administration of justice and also assists the criminal defense lawyer to potentially violate Rule 4-8.4(d) and 4-8.4(a), Rules Regulating The Florida Bar.  The opinion states that the committee believed that the vast majority of prosecutors act in good faith and would not intentionally commit misconduct; however, some prosecutorial misconduct can occur unintentionally and (in the rare instance) even intentionally.  Also, the existence of prosecutorial misconduct may be known only to the prosecutor, such as when the prosecutor has failed to disclose exculpatory information.  The opinion states 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 may be the only person) who is aware that misconduct has taken place.

According to the Bar’s notice, comments from Florida Bar members on the proposed opinion are solicited and the PEC will consider any comments received at a meeting scheduled for 9:30 a.m. on Friday, September 21, 2012 at the Buena Vista Palace in Orlando in conjunction with The Florida Bar’s Midyear Meeting.  Any comments must contain the proposed advisory opinion number and clearly state the issues for the committee to consider.  A written argument may be included explaining why the Florida Bar member believes the PEC’s opinion is either correct or incorrect and may contain citations to relevant authorities and comments should be submitted to Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, and must be postmarked no later than August 14, 2012.

Bottom line:  As many of you know, I am a current member of the PEC which considered this opinion, although (much to my chagrin) I was unable to attend the September 22, 2012 meeting.  This was (and continues to be) a hotly debated and contested ethics issue and, if you are interested, I would encourage you to comment on this proposed PEC advisory opinion.

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.





Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

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