Are Plea Waivers Involving Ineffective Assistance of Counsel Legal, but Unethical?

Are Plea Waivers Involving Ineffective Assistance of Counsel Legal, but Unethical?

The Florida Bar’s Professional Ethics Committee has ratified Proposed Advisory Opinion 12-1, which deems plea agreements waiving future claims of prosecutorial misconduct or ineffective assistance of counsel unethical.  Florida prosecutors view the Opinion as overstepping the boundary between law and ethics.  Opponents argue that this is a substantive matter of law that is best left to the Florida Supreme Court.

The Opinion came on the heels of a one-year investigation that arose from a defense lawyer’s inquiry as to whether advising a client to accept a plea containing a waiver of any future claims of ineffective assistance of counsel or prosecutorial misconduct was unethical.  Opponents of the Opinion argue that these waivers are legal; therefore, entering into these plea agreements cannot be unethical.  The Committee has defended its ratification of the Opinion by citing to the Florida Rules of Professional Conduct, specifically  Rule 4-1.7(a)(2), which states that a lawyer cannot represent a client on an issue where the lawyer has a material interest, and Rule 4-8.4, which makes it professional misconduct for a prosecutor to obstruct the administration of justice by aiding a defense attorney in violating the ethics rules.

The law versus ethics debate will likely continue until the Florida Bar’s decision is appealed to the Florida Board of Governors.

For more information visit:

http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/8c9f13012b96736985256aa900624829/18e739ade02a879585257a9100489434!OpenDocument