Florida’s criminal defense attorneys are probably aware by now that the Florida Bar has adopted the highly debated ethical opinion which prohibits waivers of claims of prosecutorial misconduct and ineffective assistance of counsel in plea bargains. According to the Florida Bar News report, although representatives from the United States Attorneys offices for the Southern, Middle, and Northern Districts of Florida argued against the adoption of the ethical opinion, the Board of Governors adopted the proposed ethical opinion with only a few dissenting votes.
The ethical opinion is a step in the right direction, but how will the opinion will be enforced? For those of you who practice in State court, if your client is offered a plea that contains a waiver of claims of ineffective assistance of counsel or prosecutorial misconduct, perhaps you could bring the new ethical opinion to the prosecutor’s attention. If that fails, you could bring the ethical opinion to the attention of the court.
However, if you practice in Federal court, the ethical opinion may not necessarily change anything. Federal court criminal defense practitioners may know that the Department of Justice does not require that the Assistant United States Attorneys be admitted to their state bar. In other words, AUSAs in the Southern, Middle, and Northern Districts may not necessarily be members of the Florida Bar. If the AUSAs are not members of the Florida Bar, they would not be bound by any of the Florida Bar’s ethical rules. Therefore, unless the U.S. Attorneys in the districts of Florida voluntarily adopt a policy prohibiting plea offers containing waivers of prosecutorial misconduct and ineffective assistance of counsel, Federal court criminal defense practitioners may see little to no change with regard to plea offers. I would hope that the US Attorneys take it upon themselves to change their policies, but, given their opposition to the ethical opinion, I wouldn’t expect it.