By: Lisa A. Mantella, Esq.
Last month, the American Bar Association Standing Committee on Ethics and Professional Responsibility released new guidelines to prosecutors regarding the negotiation of plea agreements for misdemeanor charges. The Committee issues opinions interpreting the Model Rules of Professional Conduct. Formal Opinion 486 addresses a prosecutor’s obligations under the Model Rules when negotiating misdemeanor plea agreements and emphasizes the difference between the role of prosecutors and that of other attorneys.
Formal Opinion 486 cited the fact that 80% of criminal dockets consist of misdemeanor charges. This is more than double the number of misdemeanor dockets in 1972 and has the greatest impact on communities of color. The Opinion recognized the “daunting legal and administrative burdens” this volume of cases places on the judicial system and the resulting emphasis that may be placed on speedy dispositions. Formal Opinion 486 imposes affirmative duties on prosecutors to ensure that defendants have an opportunity to obtain counsel, that plea bargains are based upon a prosecutor’s independent assessment of each charge, and that prosecutors advise of a plea’s known collateral consequences where the accused is unrepresented.
The Opinion also recognized the impact that the volume of misdemeanor cases may have on a prosecutor’s ability to fulfill his or her obligation to see that there is sufficient evidence to support a finding of guilt for each charge. The ABA noted that,
in some jurisdictions the volume of misdemeanor cases and their relatively lower stakes may dispose a prosecutor to rely uncritically on a police report or a citation and a criminal background check. Unless the prosecutor has reasonable confidence in the thoroughness of the fact finding and the evenhandedness of the judgement of other law enforcement officers who prepare the supporting documents and investigation, reliance on them is likely to be misplaced ….
Prosecutors are obliged to make an “independent assessment of the relevant facts and law for each charge.” Where a prosecutor’s workload is too heavy to make this assessment, the ABA charges a supervising prosecutor to appropriately control the workload to allow that each matter can be handled competently in compliance with Model Rule 1.3, which requires that an attorney act with reasonable diligence. Formal Opinion 486 analogizes the ethical obligations of lawyers representing indigent criminal defendants to those of prosecutors, stating that the same analysis applies:just as a criminal defense attorney must manage his or her workload to offer competent and diligent representation to indigent defendants, so must a prosecutor.
The Opinion also addresses Model Rule 3.8(b) and (c), which imposes upon a prosecutor the obligation to make reasonable efforts to ensure that the accused has been given the opportunity to obtain counsel and not seek from the accused a waiver of pretrial rights. “Even asking an unrepresented accused if he wishes to waive the right to counsel or accept a plea is improper if it is clear from the circumstances that the accused does not understand the consequences of acceding to the request.”
Where a defendant chooses to proceed without representation, a prosecutor has a heightened responsibility. Specifically, Formal Opinion 486 suggests that statements regarding the value of a plea offer which omit known collateral consequences can constitute prohibited misrepresentations under Model Rule 4.1 (requiring truth in statements to others) or 8.4(c) (regarding the integrity of the profession). The Opinion states that where a “prosecutor knows of the consequences of a plea – either generic consequences or consequences that are particular to the accused – the prosecutor must disclose them during plea negotiations.” Collateral consequences can range from exclusion from public housing to probation violations and deportation. Formal Opinion 486 offers little in the way of guidance to prosecutors as to how to disclose collateral consequences during a plea negotiation regarding such a wide range of potential issues.
During a national trend towards criminal justice reform, this Opinion reiterates the duty of a prosecutor “not to convict, but to see that justice is done.” Ultimately, the Opinion clarifies that along with the special role of a prosecutor as a “minister of justice and not simply that of an advocate” comes the added responsibilities and obligations of protecting the rights of the accused.
If you have questions about Formal Opinion 486 or its possible impact on plea agreements, please contact Lisa A. Mantella. Lisa is Counsel with Leech Tishman and is based in the firm’s Pittsburgh office. She is a member of Leech Tishman’s Litigation, Internal Investigations, Embezzlement and White Collar Criminal Defense & Government Investigations Practice Groups. She can be reached at 412.261.1600 or firstname.lastname@example.org.
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