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“There must be a pony in there somewhere” – New ABA Formal Ethics Opinion 486

by Dennis Rendleman, ABA Ethics Counsel, ABA Center for Professional Responsibility

“The presumption of innocence means that if we don’t know whether someone is guilty, they are not supposed to get convicted. But the misdemeanor system reverses those presumptions so that uncertainty all too often leads to conviction” – Alexandra Natapoff, Punishment Without Crime

The ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 486 on May 9. Longer than prior opinions and chock full of 64 footnotes, it is said to take 30 minutes to read. That is 10 times longer than many misdemeanor trials. According to a 2011 study by the National Association of Criminal Defense Lawyers, as reported in the Wall Street Journal, “[i]n Florida, misdemeanor courts routinely disposed of cases in three minutes or less, usually with a guilty plea. In Detroit, court statistics show, a district judge on an average day has over 100 misdemeanor cases on his or her docket – or one every four minutes.”

Formal Opinion 486 focuses on the distinctive challenges and obligations of prosecutors when negotiating pleas in misdemeanor cases. As the Opinion notes:

Misdemeanors make up approximately 80 percent of state criminal dockets. The number of misdemeanor prosecutions is estimated to have doubled since 1972. The expansion has had a “concentrated impact on communities of color.” Most misdemeanor arrests result in charges – declination rates are low in many states, sometimes as low as 3 or 4 percent.  And “the vast majority of defendants plead guilty” at their initial appearance.   The result is a significant increase in the pre-trial dockets of state and local courts, and daunting legal and administrative burdens for both judges and prosecutors. Collateral consequences for misdemeanor convictions have also expanded. A misdemeanor conviction can lead to denial of employment, expulsion from school, deportation, denial of a professional license, and loss of eligibility for a wide range of public services including food assistance, public housing, health care, and federal student loans. [internal citations omitted]    

The opinion confronts serious questions about the conduct of criminal prosecutors in cases where there is a charge of a misdemeanor violation. 

The issue is addressed directly by ABA Model Rule of Professional Conduct 3.8(a), (b) and (c):

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

(b)       make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c)       not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing

The heart of the opinion begins on page 8. There, the committee concludes that Model Rule 3.8(b) requires a prosecutor to ensure “(i) that the accused is advised of the procedure for obtaining counsel and (ii) that the nature and timing of prosecution does not interfere with this procedure.”

Then, at page 11, the opinion states that Rule 3.8(c) requires the prosecutor not seek a waiver of pre-trial rights from an accused. This includes the right to counsel and the right to a preliminary hearing. Nor may the prosecutor induce the accused to forgo those rights. 

The leverage of the prosecutor during this preliminary period is extraordinary. In her 2019 book “Punishment Without Crime,” professor Alexandra Natapoff documented repeatedly anecdotes about often-distressed accuseds who knew little of the legal system and desired, primarily, to get out of jail and go home. These accuseds were willing to accept almost any plea without consultation with a lawyer and without awareness of the potential collateral consequences to exit the criminal justice system. The issue has been one of growing concern. In her book, Natapoff shows how the treatment of those arrested and accused on misdemeanors failed to meet the most basic constitutional requirements. 

Formal Opinion 486 contemplates several circumstances of prohibited conduct:

(i) requiring or encouraging plea negotiation with a prosecutor before the right to counsel has been raised;

(ii) using delay or the prospect of a harsher sentence to dissuade the accused from invoking the right to counsel;

(iii) gathering arrestees into court en masse and instructing them, prior to any advice regarding the right to counsel or other rights, that they must tell the clerk of the court how they intend to plead;

(iv) using forms to obtain waivers of the right to counsel and other rights either as a condition of negotiating a plea or following a negotiation absent proper confirmation that the defendant understands the forms and the rights being waived;

 (v) permitting police officers involved in the investigation of a crime or arrest to act as prosecutors and negotiate pleas;

(vi) advising defendants of the right to counsel but failing to provide any procedure for asserting or validly waiving that right before requiring plea negotiation with a prosecutor; and

(vii) failing to inform indigent defendants of the procedure for requesting a waiver of court application fees associated with assignment of a state subsidized defense lawyer. [internal citations omitted]

The constitutional issue of misdemeanant’s rights has also been simmering for quite a while.  Precedent from the U.S. Supreme Court is clear. Under Gideon v. Wainwright, 372 U.S. 335 (1963); Argersinger v. Hamlin, 407 U.S. 25 (1972); and Alabama v. Shelton, 535 U.S. 654 (2002), all misdemeanant defendants sentenced either to probation or incarceration have a right to the appointment of counsel. (The Supreme Court has not yet addressed the question of situations where the underlying “crime” does not include the possibility of incarceration, but the failure to pay court fines, fees or other assessments may result in “debtor’s prison” for those who are unable to pay.)

However, there seems to be little judicial enforcement of this requirement as misdemeanor cases are rarely appealed. Equally striking, prosecutors at all levels rarely face lawyer discipline. See, e.g., Thomas P. Sullivan and Maurice Possley, “The Chronic Failure to Discipline Prosecutors for Misconduct: Proposals for Reform,” 105 J. Crim.L. & Criminology (2015) and Parker Yesko, “Why don’t prosecutors get disciplined?” (Sept. 18, 2018).

While the opinion does not address the issue, it is interesting to contemplate what impact the opinion may have on civil liability. It has been said under the U.S. Supreme Court’s decision in Connick v. Thompson, 131 S.Ct. 1350 (2011), that municipal liability does not exist for a single incident of prosecutorial failure, but may exist for a pattern of, for example, failure to train prosecutors. See, T. Owen Farist, “Municipal Liability? Not so Fast: What Connick v. Thompson means for Future Prosecutorial Misconduct,” 63 Mercer L. Rev. 1113 (Spring 2012). The opinion does address the obligation under Rule 5.1 regarding training of subordinate lawyers, which was a key issue in Connick. As Natapoff notes, misdemeanor screening is generally done by the most inexperienced prosecutors. Would an individual misdemeanant who is induced to plead guilty and then suffers foreseeable harm – such as deportation, loss of housing or employment, as noted by Natapoff – be able to sustain a cause of action under §1983 or some other statute? 

If, as it appears, that the common pattern is for prosecutors to violate Rule 3.8 and for supervisors to violate Rule 5.1, will this opinion put prosecutors more clearly on notice for their responsibilities both individually and as supervisors?

There is also an obligation on judges accepting misdemeanant plea bargains. Though not addressed in the opinion, the Model Code of Judicial Conduct, Rule 2.6(b) is applicable: “A judge may encourage parties to a proceeding and their lawyers to settle matters in dispute but shall not act in a manner that coerces any party into settlement.” Comment [2] reads: “The judge plays an important role in overseeing the settlement of disputes, but should be careful that efforts to further settlement do not undermine any party’s right to be heard according to law.” It is incumbent upon a judge being presented with a settlement or plea bargain to ensure that the accused when unrepresented fully understands the implications and the consequences of any plea.

However, this is not occurring. One professor quotes the then-Chief Justice of the South Carolina Supreme Court as saying in 2009:

Shelton is “one of the more misguided decisions of the United States Supreme Court . .. If we adhered to it in South Carolina we would have the right to counsel probably ... by dragooning lawyers out of their law offices to take these cases in every magistrate’s court in South Carolina, and I have simply told my magistrates that we just don’t have the resources to do that. So I will tell you straight up we [are] not adhering to Alabama v. Shelton in every situation.”

Erica J. Hashimoto, “The Problem with Misdemeanor Representation,” 70 Wash. & Lee L. Rev. 1019, 1023 (2013).

ABA Formal Opinion 06-441 specifically recognized that the number of cases being handled by a lawyer can interfere with the competent representation of a client. The opinion cited Comment [2] to Model Rule of Professional Conduct 1.3 stating that a lawyer’s workload “must be controlled so that each matter may be handled competently.” There are frequent reports about the excessive and burdensome caseloads carried by lawyers who provide representation to the indigent, whether through a public defender office or as a contracted or otherwise court- appointed lawyer. There have also been concerns about the caseloads of prosecutors. The result of the overburdened caseloads is detrimental to the accused and the public. Opinion 486 notes:

If a prosecutor’s workload is too heavy to permit the independent assessment of each charge as required by Rule 3.8(a) and the supervision of other state actors and their work product relevant to each case as required by Rules 5.1(b) and (c) and 5.3(b) and (c), the prosecutor may not be able to provide the competent representation required by Rule 1.1, nor act with the diligence required by Rule 1.3. A supervising prosecutor is responsible, under Rules 5.1(a), 5.3(a), and 8.4(a), for establishing policies, practices, and methods of monitoring prosecutors and non-lawyers that give “reasonable assurance” of compliance with prosecutors’ ethical obligations, including the obligation to be diligent and perform competent work. In the words of Comment [2] to Rule 1.3, a lawyer’s workload “must be controlled so that each matter can be handled competently.”

The burden on the judicial system that is caused by misdemeanor charges may be an indication of “over-criminalization.” The public impact is significant, see e.g., Irene Oritseweyinmi Joe, “Rethinking Misdemeanor Neglect” 64 UCLA L. Rev. 738 (2017). There is evidence of this on many fronts, but that is beyond the scope of Opinion 486 or this article. However, despite its resemblance to a law review article, Opinion 486 is a very important opinion that deserves to be read.

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