ABA issues new guidance for negotiating misdemeanor pleas

With plea deals coming under scrutiny nationally, the American Bar Association Standing Committee on Ethics and Professional Responsibility released a new formal opinion May 9 that addresses a prosecutor’s obligations when negotiating a plea agreement for a misdemeanor charge with an unrepresented individual.

Formal Opinion 486 underscores that prosecutors in such cases should ensure that each charge has an adequate foundation in fact and law. It also points to ABA model rules in noting a “categorical difference” between the role of a prosecutor and a typical lawyer advocate.

“A prosecutor’s duty is to seek justice, not merely to convict,” the opinion said.

Specifically, the opinion cites “obligations” for prosecutors under ABA Model Rules of Professional Conduct that cover such areas as lawyer competence, diligence, special responsibilities of a prosecutor, truthfulness and interaction with an unrepresented defendant.

The opinion also cited national statistics showing that misdemeanors make up approximately 80 percent of state criminal dockets, a figure that has doubled since 1972 with the greatest impact “on communities of color.” The “vast majority” of defendants, it said, plead guilty at their initial appearance, and often those accused do not understand the ramifications of a plea on their employment, immigration status and a wide range of public services.

“Notwithstanding the commitment of most prosecutors to high professional standards, there is evidence that in misdemeanor cases where the accused is or may be legally entitled to counsel, methods of negotiating plea bargains have been used in some jurisdictions that are inconsistent with the duties set forth in the Rules of Professional Conduct,” the opinion said.

“A prosecutor must ... avoid offering, negotiating and entering pleas on terms that knowingly misrepresent the consequences of acceptance, or otherwise improperly pressure, advise or induce acceptance on the part of the unrepresented accused,” it added.

The standing committee periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior.

Related links:

• Recent ABA ethics opinions
• ABA Model Rules of Professional Conduct
• ABA Journal: “Prosecutors must maintain ethical conduct during misdemeanor plea deals, ABA ethics opinion says”
• Selected coverage and commentary related to plea deals: 
  • “Innocence is irrelevant,” The Atlantic (September 2017)
  • “Plea bargains save time and money but are too easily abused,” The Economist (Nov. 9, 2017)
  • “Plea bargaining’s guilt problem,” Slate (June 7, 2018)
                “Plea bargaining: A necessary evil?” Above the Law (Nov. 20, 2018)
  • “Supreme Court expands plea bargain rights of criminal defendants,” The Washington Post     (March 21, 2012), and ABA amicus brief filed in the case