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Ethics panel examines plea waivers.

The Professional Ethics Committee has voted to consider an advisory opinion saying it is unethical, as part of a plea bargain, for prosecutors to ask defendants to waive any future claim of prosecutorial misconduct and for defense attorneys to advise clients to waive a future claim of ineffective assistance of counsel.

The committee, after more than two hours of intense discussion at its September 21 meeting, directed Bar staff to prepare a draft opinion for consideration at its next meeting, which will be early next year. That decision came by a 13-11 vote, with one member abstaining.

"The issue to me is pretty simple. If it's unethical to engage in prosecutorial misconduct, then isn't it also unethical to try to get someone to sign an agreement where they're waiving [the right to collaterally attack] prosecutorial misconduct?" said committee member Lee Haas, who made the motion to prepare the opinion.

"I think it is fundamentally inconsistent with the prosecutor's duty of administering justice," said Joseph Centorino, a committee member and former prosecutor. "That's fundamentally a situation where the misconduct is waived by law.... There's a danger in a perverse way that an unscrupulous prosecutor may use the opportunity to inject that provision into an agreement."

But committee member Ana Martinez, who has been a prosecutor for 20 years in the Southern District U.S. Attorney's Office --who said she's never used such a requirement in a plea agreement--said the proposed opinion is too sweeping.

"It is really something that has to be decided case by case, and it's not appropriate for a broad brush," she said. "I think we would open up so many unintended consequences by doing this; we don't even know the half of it. ...

"In any plea, ineffective assistance of counsel in the past and prosecutorial misconduct in the past is going to be waived. They [defendants] go through a colloquy; the defendant admits to certain facts that obviate those claims. ... That [the suggested opinion] almost means that any time you advise a client to plead guilty you're waiving ineffective assistance of counsel claims by the process. That's a conflict? It puts defense counsel in an odd situation."

The issue came to the committee after an attorney inquired of Bar ethics staff whether a defense attorney could ethically advise a client to accept a plea agreement that included a waiver of any future claim of ineffective assistance of counsel and whether a prosecutor could offer a plea deal that included an ineffective assistance claim or prosecutorial misconduct claim.

Bar staff declined to answer the question, citing a lack of precedent on which to base a decision. The attorney then appealed to the PEC, and Bar staff recommended that the committee issue a formal advisory opinion "concluding that it is unethical to either offer or accept a plea that requires the client to waive any past or future ineffective assistance of counsel or prosecutorial misconduct post-conviction claims."

Both prosecutors and public defenders made presentations to the committee.

Ed Sanchez, an assistant U.S. attorney in the Southern District, said federal courts have upheld the waivers. He said the decision to use them is case by case in the Southern District, although they are typically used in the Middle District.

He argued the agreements don't raise ethical issues for attorneys because the agreement is between the parties represented by the lawyers--in this case, the government and the defendant. He also said such an agreement is meaningless in state cases, because Florida public defenders have immunity from malpractice and personal liability by law.

Sanchez also agreed with Martinez that guilty pleas erase most, if not all, of the concerns.

"When you go through and enter a guilty plea, with or without a [waiver] agreement, the guilty plea waives any claim of ineffective assistance of counsel or prosecutorial misconduct," he said. "What this waiver is saying, in the vast majority of cases, is this is going to be the final outcome when the judge sentences you, as long as he [the judge] doesn't do something outrageous [with the sentence]."

John Morrison, representing the Florida Public Defender Association, disagreed.

"Essentially, the question for this committee is: Can attorneys advise and ask the defendant to waive misconduct by the attorney?" he said. "In other words, can you waive around the ethics rules? And I think the answer to that is 'no.'"

Another problem is some defendants, many of whom have mental health problems, will not understand what they are waiving and the resulting implications.

"I don't think this is waivable, and I don't think defense attorneys can legitimately advise their clients to waive them," Morrison said.

Robert Young, general counsel for the 10th Circuit public defender's office and a former county court judge, said the waiver exacerbates an already powerful negotiating position for prosecutors in plea bargains, because of tougher penalties and higher minimum mandatory sentences. Defendants can feel pressured to accept a plea before they know what evidence the prosecutor has, even if they are innocent.

"If the plea deal is between two years and life or 30 years in prison, you may say, 'I'm going to take the deal,' even if the evidence is missing," Young said.

"What this approach does is elevate finality over everything else, including actual innocence."

But David Rhodes, an assistant U.S. attorney from the Middle District, said the skeptics were making too much of the practice.

"This waiver that we're talking about, at least in the federal system ... is just the defendant's agreement that, 'I am guilty, and within the statutory constraints I am going to accept the district court's ability to sentence me within that range, and I am not going to challenge that,'" he said.

Committee members expressed a wide variety of opinions. Some likened it to asking a client to waive filing a Bar grievance, prohibited by rules. Others said finding the practice unethical in all cases might smack of being a policy decision, since the problem would be in cases where prosecutors were trying to cover up misconduct, or defense attorneys were trying to hide ineffective assistance.

They also said it could result in longer sentences for defendants, because prosecutors may not offer the same reduction in sentences without the waivers.

Committee member D. Culver Smith III noted the committee was voting only to have an opinion drafted, not to approve what the opinion will say.

It will be some time before any final opinion is adopted. The committee will not consider the draft until its next meeting, which will probably be in February of next year. If a proposed opinion is approved then, it would be advertised for comments, and the committee would consider those comments at its June 2012 meeting. If no major changes are made, an opinion could receive final approval then, while any major change would require another publication for comments.

If an opinion does get a final approval by the committee, given the controversial nature of the issue, it would likely be appealed to the Bar Board of Governors, adding several more months to the process.

By Gary Blankenship

Senior Editor
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Author:Blankenship, Gary
Publication:Florida Bar News
Date:Oct 15, 2011
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