Board adopts hotly debated plea bargain ethics opinion: At issue are plea bargains prohibiting claims of ineffective assistance or prosecutorial misconduct.

Representatives from all three of Florida's U.S. attorney offices traveled to Amelia Island last month with a simple goal: convince a Bar Board of Governors committee and then the board itself to reject a proposed ethics opinion that a waiver used in some plea bargains is unethical for both defense attorneys and prosecutors.

They had little success. After more than 90 minutes of debate, the Board Review Committee on Professional Ethics voted on December 6 to recommend Proposed Advisory Opinion 12-1 by a 7-0 vote. On the following day, the Board of Governors without discussion accepted the BRCPE advice with only a few dissenting votes.

At issue was the practice --commonly used by some U.S. attorney offices and rarely in others--of adding a condition to plea bargains prohibiting the defendant from later raising a claim of ineffective assistance of counsel or prosecutorial misconduct.

"It goes too far," said Southern District U.S. Attorney Wildredo Ferrer.

"It is basically an absolute prohibition that is being addressed in the [advisory] opinion. I think the analysis has detrimental consequences to all of the guilty pleas we enter," Ferrer said.

He added that 97 percent of federal cases and 94 percent of state court cases are settled with plea bargains.

Ferrer and other opponents of the opinion raised several points:

* The opinion affects only sentencing in guilty pleas, since a guilty plea effectively carries such a waiver for all actions up until the plea.

* Such waivers have been upheld as legally valid in the 11th U.S. Circuit Court of Appeals and other federal courts.

* The opinion should be applied case by case, and there is no conflict for defense attorneys who believe they have done a thorough job. "There is a conflict when an attorney believes that he or she has been ineffective, and they know that and they are trying to hide it by making the client sign a waiver. That's a situation we don't want," Ferrer said.

* The defense attorney is not part of the plea agreement, because legally it is an agreement between the prosecutor and the defendant.

* The waivers can be attacked afterward if they cause a "manifest injustice," and that protects defendants.

* The waivers can be a significant bargaining chip for defendants in seeking reduced charges and sentences in a plea agreement.

David Rhodes, appellate chief for the Middle District U.S. Attorney's Office, told the BRCPE that case law requires that judges explain to defendants exactly what...