Florida Bar’s Professional Ethics Committee Directs Staff to Draft Advisory Opinion Considering Whether Prosecutors can Require Waivers of Ineffective Assistance and Prosecutorial Misconduct Claims in Exchange for a Plea

Hello everyone and welcome to this JACPA Ethics Alert.  This Ethics Alert will discuss the recent decision of the Professional Ethics Committee of The Florida Bar (PEC) to issue an advisory opinion considering whether prosecutors can require waivers of ineffective assistance and prosecutorial misconduct claims in exchange for a plea to criminal charges.  As I have previously indicated, Bar Ethics Advisory Opinions are issued for guidance and are not binding precedent; however, if a lawyer attempts to follow the guidelines set forth in the ethics opinion, this could be a potential safe harbor or mitigation if the lawyer’s actions are later questioned.  I am a member of the PEC; however, I did not participate in the committee’s vote.

The PEC reviewed the issue at its meeting in Orlando on September 21, 2011.  The PEC’s discussion was a result of an inquiry from a member of The Florida Bar who advised that U.S. Attorney’s Offices in Florida are requiring the waivers.  After deferring the issue at its June 24, 2011 meeting, the PEC sought comments from interested groups such as the Florida Public Defenders Association, Florida Association of Criminal Defense Lawyers, Florida Prosecuting Attorneys Association, and the U.S. Attorney’s Offices in Florida.

Those groups all responded with written comments, and there were also some individual comments and some individuals spoke at the meeting.  Individuals representing the U.S. Attorney’s office for the Middle District of Florida appeared at the meeting and confirmed that such waivers are relatively common in the Middle District.

After the hearing comments and engaging in discussions, the PEC voted 13-11 (with one abstention) to direct Bar staff to draft a proposed advisory opinion for the committee’s consideration which concludes that a criminal defense lawyer has a conflict of interest that prevents the lawyer from advising a client whether to accept a plea offer that requires the client to waive any past or future ineffective assistance of counsel by the lawyer, and that it is impermissible for a prosecutor to make such an offer or to require a waiver of a claim of prosecutorial misconduct.

The draft advisory opinion will be placed on the agenda for review at the next PEC meeting, which has not yet been scheduled.  If proposed advisory opinion is formally adopted by the PEC, it will be published for comment in the next available issue of the Bar News.  The PEC will then reconsider the proposed advisory opinion in light of any comments received.  Any persons who timely file comments could then seek review of the proposed advisory opinion by the Bar’s Board of Governors if they disagree.

Bottom line: This has been a very hot topic in the criminal practice area recently.  If the advisory opinion is finalized, it will provide guidance to criminal prosecutors and defense attorneys regarding the ethical propriety of these waivers.

…and 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.

THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

DEFENDS LAWYERS IN BAR ADMISSION AND DISCIPLINE CASES

(AND MUCH MORE!)

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license.

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

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