On December 7, 2012, the Florida Supreme Court issued professional ethics opinion 12-1, joining a growing number of states who have opined that a “criminal defense lawyer has an unwaivable conflict of interest when advising a client about accepting a plea offer in which the client is required to expressly waive ineffective assistance of counsel and prosecutorial misconduct. 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.”
As a general rule, this opinion will have only minimal, day to day, impact in State court prosecutions in this jurisdiction because in the Thirteenth Judicial Circuit (Hillsborough County), plea agreements have not generally included the prohibited language. But there have been instances where such waivers have been required as part of a plea agreement. In fact, such a plea offer was extended recently in the context of a motion to withdraw a defendant’s plea and the Second DCA specifically found that defendant cannot waive a claim of ineffective assistance of counsel in entering a plea. Pagan v. State, Case No. 2D11-3804 (FL 2nd DCA November 14, 2012).
The greater impact of Supreme Court’s ethics opinion will be in federal court where prosecutors often insist in requiring such waivers as part of plea agreements. The Court’s opinion now makes it clear that such waivers are prohibited.
In reaching this conclusion Florida joins Alabama, Arizona, Missouri, North Carolina, Ohio, Tennessee, Vermont, Virginia, and Vermont in finding that such waivers are impermissible. The opinion also comports with a proposed ethics opinion issued by National Association of Criminal Defense Lawyers, which opined that a criminal defense lawyer should not participate in plea agreements containing such language. Texas stands alone as the only state to consider the issue and not find it per se unethical. In 2006, Texas determined that such waivers may be permissible depending on the circumstances. This of course places lawyers in the very difficult position of having to make case by case determinations of whether they can ethically advise their clients to waive an attack on the effectiveness of the representation they have provided.
In proscribing an outright ban such waivers in plea agreements by making it clear that prosecutors may not offer plea agreements with such language and that criminal defense lawyers have unwaivable conflicts of interest in such situations, the Court has set up an easy to follow bright-line rule, far more workable and certain than Texas’ case by case approach.