Category Archives: Florida lawyer ethics opinion 12-1 waiver of ineffective assistance of counsel and prosecutorial misconduct

U.S. Department of Justice prohibits ineffective assistance of counsel waivers as part of plea bargains in federal criminal prosecutions

Hello everyone and welcome to this Ethics Alert which will discuss the recent Washington Post article which states that the Justice Department has prohibited U.S. Attorneys from requiring waivers of ineffective assistance of counsel in exchange for a plea. The Post article is here: http://www.washingtonpost.com/world/national-security/doj-to-amend-competent-counsel-waiver-practices-as-holder-prepares-to-step-down/2014/10/14/465efbde-53ba-11e4-809b-8cc0a295c773_story.html?hpid=z3

According to the Washington Post article, the Justice Department said on October 14, 2014 that, effective on that date, federal prosecutors are prohibited from requiring criminal defendants to waive their right to claim ineffective assistance of counsel a condition of a plea. Attorney General Eric H. Holder said the “policy is an attempt to ensure that all individuals who face criminal charges are ably represented. ‘Everyone in this country who faces criminal legal action deserves the opportunity to make decisions with the assistance of effective legal counsel…(u)nder this policy, no defendant will have to forego their right to able representation in the course of pleading guilty to a crime.’”

“A memo by (Deputy Attorney General James M.) Cole directs federal prosecutors to no longer require criminal defendants to waive their future claims of ineffective assistance of counsel in plea agreements. It also instructs federal prosecutors to stop enforcing waivers that have already been signed in cases where defense counsel provided ineffective assistance that resulted in prejudice or where the defendant’s claim raises a serious issue that a court should resolve.” The Post article states that some U.S. attorney’s offices no longer require defendants to waive their right to make future claims about the effectiveness of their counsel; however, before the new policy was announced, 35 of the Justice Department’s 94 U.S. attorney’s offices still permitted the waiver requirement.

Bottom line: As I discussed in my 12/13/12 Ethics Alert blog, which is here: https://jcorsmeier.wordpress.com/2012/12/13/florida-bars-board-of-governors-approves-advisory-opinions-related-to-waivers-of-ineffective-assistance-and-prosecutorial-misconduct-and-permitting-lawyers-to-authorize-non-lawyers-to-use-e-portal-c/, Florida Bar Ethics Advisory Opinion 12-1 opines that it was unethical for criminal prosecutors to request such ineffective assistance waivers and for criminal defense lawyers to accept them. The opinion also states that it was unethical for prosecutors to request, and defense lawyers to agree to waivers of prosecutorial misconduct. This new DOJ policy now prohibits all federal criminal prosecutors from requiring such a waiver as part of a criminal plea.

Let’s be careful out there.

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

Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670
jcorsmeier@jac-law.com
http://www.jac-law.com

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Filed under Ethics of criminal plea waivers, Florida lawyer ethics opinion 12-1 waiver of ineffective assistance of counsel and prosecutorial misconduct, Ineffective Assistance of Counsel, joe corsmeier, Joseph Corsmeier, Lawyer conflict of interest, Lawyer ethics, Lawyer Ethics and Professionalism, Prosecutorial misconduct ethics

Kentucky Supreme Court upholds ethics opinion finding that a waiver of ineffective assistance claims as part of criminal plea bargain violates ethics lawyer rules

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Kentucky Supreme Court opinion which upheld an ethics opinion stating that waiver of ineffective assistance claims as part of plea bargain violates lawyer ethics rules. The opinion is: United States of America v. Kentucky Bar Association, Case No. 2013-SC-000270-KB (August 21, 2014) and is at: http://opinions.kycourts.net/sc/2013-SC-000270-KB.pdf

The U.S. Attorney for both the Eastern and Western Districts of Kentucky requested that the Kentucky Supreme Court review Kentucky Bar Association Ethics Opinion E-435, which opined that the use of ineffective assistance of counsel waivers in plea agreements violated the Kentucky Rules of Professional Conduct. The ethics opinion stated that the use of the waivers in plea bargain agreements creates a non-waivable conflict of interest between the defendant and his attorney, limits the attorney’s liability for malpractice, and causes defense counsel to violate the ethics rules.

According to the Kentucky Supreme Court opinion, “(u)nder our ethical rules, ‘(i)t is professional misconduct for a lawyer to:…knowingly assist or induce another (attorney) to” “violate or attempt to violate the Rules of Professional Conduct…. Providing context to the language, knowing is defined as ‘(h)aving or showing awareness or understanding’…and induce is roughly defined as to ‘influence or persuade…’ Prosecutors offering plea agreements with IAC waivers surely violate this rule.”

“Despite any notion of horse trading, plea agreements are often essentially contracts of adhesion. Indeed, in the context of appellate waivers, they have been labeled as such. The plea agreement often comes with a take-it-or leave-it tone. And defense counsel is forced to deal with the provision if offered. Because the prosecutor is aware of our ethical rules, we see little reason why offering a contract of adhesion that requires a fellow attorney to perform unethically in order to comply with other ethical or constitutional obligations would not be “influencing or persuading” a fellow attorney to violate our ethical rules. Contrary to the United States’ assertion, it is not necessary that the prosecutor know defense counsel has been ineffective in order to satisfy the rule. Instead, the plain language of the rule indicates that what is required is for a prosecutor to understand his conduct will result in a fellow attorney violating our ethical rules.”

“(Ethics Opinion) E-435 additionally found the United States plea-bargaining practice violated -3.8 of our ethical rules. As a result of their weighty role in our justice system, -3.8 places special responsibilities on prosecutors. E-435 holds the insertion of IAC waivers in plea agreements violates the “spirit” of -3.8 and prosecutors disregard their role as a “minister of justice” when using such waivers. In truth, prosecutors are expected to be more than “simply…an advocate.” Demanding a defendant waive a potential IAC claim—or, worse, all collateral attack—may provide finality but at too high of a cost. A defendant’s conviction is essentially unappealable as a result of the waiver in question. A prosecutor is charged with “see(ing) that the defendant is accorded procedural justice,” and we simply do not believe the use of IAC waivers lives up to that lofty expectation. Accordingly, we affirm E-435 with respect to prosecutors.”

“We are duty-bound to regulate the legal profession within our borders. Today, we are proactive in that role. Attorneys practicing in this Commonwealth, whether state or federal, must comply with our ethics rules. Accordingly, either defense counsel or prosecutors inserting into plea agreements waivers of collateral attack, including (ineffective assistance of counsel), violates our Rules of Professional Conduct.

Bottom line: This Kentucky Supreme Court opinion confirms that waiver of ineffective assistance claims as part of plea bargain violates Kentucky lawyer ethics rules. Florida Bar Ethics Advisory Opinion 12-1 (2012) reached the same conclusion and also opined that a “prosecutor may not make an offer that requires the defendant to expressly waive ineffective assistance of counsel and prosecutorial misconduct because the offer creates a conflict of interest for defense counsel and is prejudicial to the administration of justice.”

Let’s be careful out there.

Disclaimer: this Ethics Alert is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670
jcorsmeier@jac-law.com
http://www.jac-law.com

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Filed under Attorney Ethics, Florida lawyer ethics opinion 12-1 waiver of ineffective assistance of counsel and prosecutorial misconduct, Ineffective Assistance of Counsel, joe corsmeier, Joseph Corsmeier, Lawyer conduct prejudicial to the administration of justice, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics opinions, Prosecutorial misconduct ethics

Florida Bar’s Board of Governors approves Advisory Opinions related to waivers of ineffective assistance and prosecutorial misconduct and permitting lawyers to authorize non-lawyers to use E-Portal credentials

Hello everyone and welcome to this Ethics Alert blog Update which will discuss the approval of Ethics Opinions 12-1 and 12-2 by the Florida Bar Board of Governors of The Florida Bar at its meeting on December 7, 2012.  Advisory Opinion 12-1 can also be viewed online at http://www.floridabar.org/tfb/TFBETOpin.nsf/b2b76d49e9fd64a5852570050067a7af/6a2611d9cdcc8db485257ad00070e3fb!OpenDocument and Advisory Opinion 12-2 can be viewed at http://www.floridabar.org/tfb/TFBETOpin.nsf/b2b76d49e9fd64a5852570050067a7af/4e9e9f5062025c5a85257ad00071b560!OpenDocument.

As I have stated in my previous Ethics Alerts, the Professional Ethics Committee of The Florida Bar, after extensive debate and review, issued proposed Advisory Opinion 12-1, which determined that it is unethical for a criminal defense lawyer to advise a client to accept a plea bargain that prevents the client from raising future claims of ineffective assistance of counsel or prosecutorial misconduct.  The opinion also states that it is unethical for prosecutors to offer such a plea condition because it could induce defense attorneys to act unethically and is prejudicial to the administration of justice.  The Florida Bar’s Board of Governors reviewed and approved the opinion at its meeting on 12/7/12 and it is now final.

The Florida Bar’s Board of Governors also approved proposed Advisory Opinion 12-2 at its meeting on 12/7/12 which opines that lawyers may permit non-lawyers to use the lawyer’s access credentials for filing documents with a court using the E-Portal.  The executive summary states that “(t)he lawyer must properly supervise the nonlawyer, should monitor the nonlawyer’s use of the E-Portal, and should immediately change the lawyer’s password if the nonlawyer employee leaves the lawyer’s employ or shows untrustworthiness in use of the E-Portal.”

Bottom line:  The controversial Advisory Opinion 12-1 and the not so controversial Advisory Opinion 12-2 are now final. As I have said in the past, Ethics Advisory Opinions are not binding or precedential; however, they can be and are used for guidance by lawyers and the basis for prosecution by The Florida Bar if they are not followed.

Be careful out there!

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

 Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

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Filed under Attorney Ethics, Florida lawyer ethics opinion 12-1 waiver of ineffective assistance of counsel and prosecutorial misconduct, Florida lawyer ethics opinion 12-2 e-portal filing authorization, joe corsmeier, Lawyer ethics, Lawyer ethics opinions