PEC takes up questions of ethics in plea bargins
PEC takes up questions of ethics in plea bargins August 1, 2011 Regular News PEC takes up questions of ethics in plea bargins Can a criminal defense attorney ethically advise a client to accept a plea bargain that includes the client waiving the right to later raise a claim of ineffective assistance of counsel? Can a prosecutor ethically offer a plea bargain that bars a later claim of prosecutorial misconduct?The Bar’s Professional Ethics Committee is considering preparing a formal ethics opinion on the issue, but at its last meeting deferred voting to begin that process to resolve a technical issue involving a conflict rule. The committee also decided to solicit input from the Florida Prosecuting Attorneys Association, U.S. attorneys, and the Florida Association of Criminal Defense Lawyers.The issue arose following an attorney’s inquiry to the Bar’s ethics staff. The attorney noted that the standard practice by U.S. attorneys in Florida’s federal Southern and Middle districts is to include in plea agreements that the defendant waives any future collateral appeals. That would include, the attorney noted, prohibiting any claim of ineffective assistance of counsel or prosecutorial misconduct.The attorney specifically asked when it becomes a conflict for a defense attorney to advise a client on accepting such a waiver in a plea agreement or for a prosecutor to offer such a waiver as part of a plea agreement. The attorney said that a few other states have considered the issue, with some states finding conflict and some not.Bar staff declined to offer a staff opinion, saying, “There is no previous precedent or underlying Bar policy on which to base an opinion. . . . ”The attorney then appealed to the Professional Ethics Committee, adding in his letter, “This issue is so significant to the federal criminal defense bar that 19 other criminal defense lawyers participating in the Southern District of Florida’s court-appointed Criminal Justice Act panel have authorized me to represent that they support this request for an ethics opinion.”A motion was made to prepare an advisory opinion on the subject, but the committee approved a motion to defer an opinion in order to allow the Bar Board of Governors to waive Bylaw 2-9.4, which addresses conflicts for PEC members, since two U.S. assistant attorneys sit on the PEC.As part of the deferral, the committee also agreed to seek outside input from prosecutors and defense lawyers. The issue is expected to be on the committee’s September 23 agenda.On other matters, the committee:• Agreed with Bar staff that a lawyer may not own a company in which foreign nationals may invest with that attorney representing the foreign nationals in their immigration matters and being paid at least in part by the company. Bar staff said the arrangement raised questions on solicitation, business transactions with clients, conflicts of interest, financial assistance to a client, and payment by third parties.• Recommended that the Bar Board of Governors instruct its delegates to the ABA House of Delegates to oppose suggested changes to the ABA Model Rules of Professional Conduct on technology and confidentiality. The PEC said key terms are not defined; the rule requires monitoring over people or entities the lawyer has no control; the rule values lower costs over ethics; and the rules do not conform to a Florida Bar ethics opinion on metadata. The Board of Governors was scheduled to consider that issue at its July 29 meeting, after this News went to press.• Recommended that the Bar Board of Governors instruct its delegates to oppose suggested changes to the ABA Model Rules of Professional Conduct on outsourcing. The PEC said the amendments don’t meet the principles in Florida Ethics Opinion 07-02 on outsourcing because the changes lower supervisory responsibilities for the lawyer. The Board of Governors was scheduled to consider that issue at its July 29 meeting.