May 09, 2019

ABA issues new guidance for prosecutors negotiating misdemeanor plea agreements

CHICAGO, May 9, 2019 — The American Bar Association Standing Committee on Ethics and Professional Responsibility released today Formal Opinion 486 that addresses a prosecutor’s obligations when negotiating a plea agreement for a misdemeanor charge with an unrepresented individual.

The opinion underscores the importance in these cases for prosecutors to ensure that each charge has an adequate foundation in fact and law. It also cited 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 these “obligations” for prosecutors under ABA Model Rules of Professional Conduct:

  • Model Rule 1.1, which states a lawyer shall provide competent representation to a client.
  • Model Rule 1.3, which states a lawyer shall act with reasonable diligence and promptness in representing a client.
  • Model Rule 3.8(a)(b), which cover special responsibilities of a prosecutor.
  • Model Rule 4.1, which requires truth in statements to others.
  • Model Rule 4.3, which deals with interactions with unrepresented persons.
  • Model Rule 5.1, which addresses the added responsibilities of a managing partner or supervisory lawyer.
  • Model Rule 5.3, which addresses the responsibilities of those in supervisory capacities who are nonlawyers.
  • Model Rule 8.4 (a)(c)(d), which relate to maintaining the integrity of the profession.

The opinion 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,” it said, plead guilty at their initial appearance, and often the accused does not understand the full ramifications that such a plea could have on such life areas as 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. In concluding, it added: “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.”

The ABA Standing Committee on Ethics and Professional Responsibility 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. Recent ABA ethics opinions are available on the ABA Center for Professional Responsibility website.

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