Plea waivers under examination: is it unethical to ask defendants to waive a future claim of prosecutorial misconduct?

The Professional Ethics Committee has postponed its vote on a proposed advisory opinion that would make it unethical for defense attorneys to advise clients to waive future claims of ineffective assistance of counsel as part of the plea bargaining process. The opinion would also make it unethical for prosecutors to require a defendant to waive any future claim of prosecutorial misconduct.

The committee addressed the draft opinion during its February 3 meeting, with both prosecutors and defense attorneys arguing in opposition to and in support of the proposal. The decision to defer a vote until the committee's June meeting came after a lengthy debate.

"You can have all the rules that you want, but you still have to rely on the compliance of the practitioners," said Eighth Circuit State Attorney Bill Cervone. "A rule is not going to stop some perceived problem."

Cervone, who represented the Florida Prosecuting Attorneys Association at the committee meeting, later questioned what purpose the opinion would serve.

"We just don't believe that there's any necessity for it. It seems to us to be a solution looking for a problem."

Most defense attorneys disagree, arguing that the rule would not only help to prevent unethical plea bargaining practices, but would protect the public from perceived increasing prosecutorial power caused by tougher penalties and higher minimum mandatory sentences.

"In this day and time, prosecutors decide almost everything about a criminal case, including the sentence.... They have all these powers, way more than they've ever had historically in Florida, both in state and federal courts," said Robert Young, general counsel for the 10th Circuit Public Defender's Office.

Young said the plea waiver intensifies that power. because defendants often can feel pressured to accept a plea deal before they know what evidence the prosecutor possesses.

"It just doesn't make ethical sense for a prosecutor to have all that power and then still require a defendant to say, 'Gee, if the prosecutor did something wrong, I am going to hold him harmless and not mention it again,' in return for getting a plea that was reasonable in the first place."

But opposing prosecutors point out that the plea waivers are not widely used on the state level, making any new rules unnecessary.

"The state prosecutors do not use the kinds of plea bargains that the rule would be directed to to any great extent at all, although apparently federal prosecutors do in...