Tuesday, June 26, 2012


The Florida Bar has released the first draft of a proposed ethics opinion on the "ethical propriety of offering or advising a criminal defendant to accept a plea offer in which the criminal defendant waives past or future ineffective assistance of counsel and prosecutorial misconduct," which means that in the future Clearwater Criminal Defense Attorneys and prosecutors must not offer nor recommend accepting  pleas with that language embedded. To do so will in the future be deemed improper and unethical in St. Petersburg, Largo & Tampa Bay, Florida. But what about all the changes of pleas that have been accepted in Florida Federal and State Court systems which routinely contain provisions which the Florida Bar finds ethically repugnant? 
Clearly Defendants can sign plea agreements even when innocent. But based on the new Florida Bar Ethics Committee draft opinion plea agreements that impede a Defendant's right to attack the plea based on ineffective assistance of counsel or prosecutorial misconduct will no longer be binding. Florida appeals courts will need to determine if Defendants should be allowed to abrogate signed agreements which contain the offensive ethical provisions. Possibly so, as the Florida Bar decision would suggest that any attorney who allowed his client to sign such an agreement has committed an unethical act, an act which would appear at first blush to be a fine example of ineffective assistance of counsel.  On an even broader scale every Tampa Federal Criminal Lawyer knows that signing a plea agreement in the Middle District of Florida in Tampa entails a suspect waiver of appeal provision, one that the Florida Bar finds deplorable. 

Here is the portion of the Florida Bar Ethics Committee First Draft as to the ethical responsibilities of Defense Attorneys and Prosecutors:
signing plea agreement waiving rights is unethical in Florida
Vermeer, A Florida Plea Agreement?, 1670
"... a criminal defense lawyer has a personal conflict of interest when advising a client regarding waiving the right to later collateral proceedings regarding ineffective assistance of counsel. The lawyer has a personal interest in not having the lawyer’s own representation of the client determined to be ineffective under constitutional standards. This conflict is not one that the client should be asked to waive as noted in the comment to Rule 4-1.7, which states: “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.” A disinterested lawyer would be unlikely to reach the conclusion that the criminal defense lawyer could give objective advice about that lawyer’s own performance.
Regarding the prosecutor’s conduct in offering the plea agreement, the committee agrees with those states that find that the conduct is impermissible as both prejudicial to the administration of justice and assisting the criminal defense lawyer in violating the Rules of Professional Conduct under Rule 4-8.4(d) and 4-8.4(a), Rules Regulating The Florida Bar. The Committee believes 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. Prosecutorial misconduct may be known only to the prosecutor in question, e.g., when the prosecutor has failed to disclose exculpatory information. The Committee’s opinion is 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 indeed may be the only person, to be aware that misconduct has taken place."
All of this means that Clearwater Criminal Defense Lawyers must be vigilant to defend the rights of clients even in plea agreements that were thought to be appropriate because they'd been accepted by the  Florida legal system in practice, usage and functionality even while being unethical.