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:
|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.