Category Archives: Ineffective Assistance of Counsel

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

Illinois disciplinary board recommends 6 month suspension for lawyer who “overreached” on a fee and sent communication to a prosecutor violating attorney/client confidentiality and implicating client

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Illinois disciplinary review board report and recommendation that a criminal defense lawyer receive a 6 month suspension for his misconduct in representing and defending clients in two criminal cases.  The disciplinary recommendation/report is In the Matter of: G. Ronald Kesinger, No. 1452908, Commission No. 2011PR00025 (October 24, 2012).  The opinion is here:  http://www.iardc.org/HB_RB_Disp_Html.asp?id=10624.

According to the report, in the first case, an individual named Mays was arrested in December 2008 in Champaign County, Illinois and charged with the first degree murder of his neighbor, Spinks, who was killed by a single gunshot while standing in his apartment doorway.  In May 2009, the lawyer agreed to represent Mays for a set fee of $15,000.00.  Mays initially told the lawyer that he was not involved in the murder and that he had returned home that night from work accompanied by two female co-workers and discovered that his apartment had been burglarized.  He claimed that whoever had killed Spinks had also stolen his property and had framed him by leaving his cap and jacket at the crime scene.

On August 26, 2009, five days before trial, the Mays’ story apparently dramatically changed and, after being told the new story, the lawyer sent correspondence to the prosecutor describing the new story in detail.  According to the lawyer’s correspondence, Mays and Shaw went to Spinks’ apartment and Spinks opened the door and, when Spinks saw Mays and Shaw, he tried to close the door but Mays tried to “put his arm through the door to get in”  and  “the door hit the gun which Shaw had in his hand and it discharged”.  On August 27, 2009, the lawyer also sent letters to two witnesses, Kathleen Faber and Roger Brown, which disclosed the information Mays had told him, in an apparent effort to persuade the two witnesses to talk to him.

On August 28, 2009, the prosecutor told the lawyer in an e-mail that he was going to file additional criminal charges of home invasion and felony murder against Mays and, on August 31, 2009, the prosecutor filed a motion to add the additional charges.  The lawyer objected and claimed that he was surprised by the new charges and requested a continuance of the trial.  At the hearing on the motion, the prosecutor argued that the lawyer’s communication was “tantamount to a confession to a felony murder”, that the charges could not have been a surprise to the lawyer, and that the additional charges were supported.  The court granted the  motion to add the charges and denied the lawyer’s request for a continuance.  The lawyer then attempted to withdraw on the morning of the trial, the court denied the motion, the trial was held, and Mays was convicted.

The lawyer told the Illinois review board that his communication was “an attempt to get a plea agreement” and to let the prosecutor know what testimony his client “would have to offer”.  The lawyer also said that he did not understand that his communication might be viewed as an admission to the additional crimes of home invasion and/or felony murder.  Astonishingly, the lawyer told the review board that he did not know the Illinois felony murder law and he also conceded that he did not have the client’s informed consent to the disclosure.

In the second case, the client, Bufford, was one the three defendants charged with possession of cocaine, each of whom the lawyer agreed to represent for a flat fee of $5,000.00. The charges against the other defendants were dismissed; however, the case against the client remained pending.  At the lawyer’s request, the client assigned his bond refund to the lawyer; however, since the $10,000.00 bond was greater than the fee of $5,000.00, he asked the lawyer to provide written confirmation of the fee arrangement.  The lawyer then sent a letter stating: “Please be reminded that you posted $10,000 to be released from jail.  Inasmuch as my fee is only $5,000.00, I will refund to you any amounts left over after deducting the sum of $5,000.00.”

The trial was set for February 23, 2009.  On February 19, 2009, the lawyer sent correspondence to the client demanding additional fees stating that he was “getting perturbed” about the number of hours he had spent on the case and about the number of hearings he had attended and further:

“I have reviewed your file in anticipation of a trial next Monday. I find that it has been necessary to appear in Court thus far fifteen times since I first appeared on March 11, 2008.  I anticipate I will have to appear on Monday, Tuesday and Wednesday for another twenty-five hours. Since I must expend five hours each time I must appear in Court, fifteen different appearances means seventy-five hours of time. Therefore, I will have expended over one-hundred [sic] hours on your case. When charging by the hour, my customary and usual fee is $250 per hour. This means the legal fee should be $25,000.  I remind you that you paid me $5,000. It is necessary that you assign over the remainder of the Bail Bond in order for me to be adequately compensated for this case. Accordingly, I require that you sign the enclosed Assignment of Bond before I proceed on Monday.

The client did not receive the correspondence until after the February 23, 2009 court date.  On the morning of February 23, 2009, the lawyer met with the client and discussed the amount of time he was spending on the case.  He showed the client a document that he claimed showed the hours he had spent on the client’s matter and requested/demanded the remainder of the bond refund as a fee.  The client refused and later testified that the lawyer then replied that the “money (was) signed over to him anyway” and that he was going to tell the judge he had a conflict of interest and ask to withdraw from the representation.  The lawyer testified that he decided to file a motion to withdraw because the client insisted that certain witnesses be called, and the lawyer did not believe the witnesses would testify truthfully.  He admitted that the client’s refusal to pay additional fees “played a role” although not a “primary role” in his decision to file the motion to withdraw.

The lawyer then filed a motion to withdraw stating as grounds “irreconcilable differences in strategy in that Defendant desires to proceed at trial in a manner that would cause his attorney to violate the Supreme Court Rules of Professional Conduct.”  The client told the judge that he consented to the motion to withdraw and the judge granted and granted the client 21 days to hire new counsel.  The client hired new counsel and the criminal case was dismissed in January 2010.

On February 2, 2010, the Clerk of the Court sent a bond refund check in the amount of $9,000.00 to the lawyer and he cashed the check and kept the entire amount.  He testified that when he received the check, he believed that the client had signed the entire bond refund over to him and, when he checked his file, he saw an unsigned bond assignment and his letter of February 19, 2009, and thought he was entitled to the entire refund.

Sometime in February 2010, the lawyer sent the client correspondence stating that he had spent over 100 hours on the case, that his customary fee was $250.00 an hour, and enclosing a document that showed thirteen court appearances for five hours each, which included travel time of four hours to and from Champaign.  At the disciplinary hearing, the lawyer admitted that, for the first eight appearances, he also was in court representing the co-defendants.  The lawyer had charged five hours of time to draft a two page discovery motion and ten hours to draft a one page response to a motion for joinder of the cases and appear on the motion.

The lawyer testified at the board hearing that he realized that he might not have been entitled to the entire bond refund after he received notice of the disciplinary charge and after he checked with the clerk’s office and learned that the client had not signed over the remainder of his bond to him, he was “mortified”.  The lawyer sent a letter to the disciplinary counsel stating that his memory was faulty and he also sent a refund check in the amount of $4,000.00 to the client with an apology in March 2011.  The lawyer claimed that he had a “lot of things on my plate” and was distracted and going through a divorce in 2010 and was caring for two teenage daughters.  He also said that he has trouble with his memory and did not intentionally convert the funds.  The board’s report found that the lawyer engaged in overreaching the attorney-client relationship and breached his fiduciary duty in his attempts to renegotiate his fee with the client and that he had converted the funds, but that he did not act with a dishonest motive.  The review board recommended a six-month suspension for the lawyer’s misconduct.

Bottom line:  A criminal defense lawyer should not send letters to prosecutors with client confidential information that may amount to admissions of additional crimes “to attempt to get a plea” (especially without at least consulting with the client) and should be familiar with potential crimes with which the client may be charged (particularly before making admissions which may implicate him (or her) in those crimes), and should not take a fee (or a bond refund) that he or she has no right to take…

…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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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.

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

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

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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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