In May 2019, the ABA Standing Committee on Ethics and Professional Responsibility issued a formal opinion on the “Obligations of Proscutors in Negotiating Plea Bargains for Misdemeanor Offenses.” See ABA Formal Op. No. 486 (May 9, 2019). The committee decided to address the issue because misdemeanors “make up approximately 80 percent of state criminal dockets,” have significant collateral consequences, and sometimes involve questionable plea-bargaining conduct by prosecutors. Id. at 3-5. The committeee noted the following documented1 types of questionable 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
Id. at 5-6.
To address these issues, the committee opined that a prosecutor should:
- Be mindful of the prosecutor’s duties to ensure that charges in a misdemeanor case have a sufficient evidentiary and legal foundation.
- Assure that the work of subordinates and agents, including law enforcement officers, is compatible with the prosecutor’s professional obligations.
- Inform an unrepresented accused person of the right to counsel and the process for securing counsel, and to avoid engaging in conduct that interferes with that process.
- Avoid pressuring an unrepresented person to accept a plea or to waive representation by defense counsel.
- Avoid offering, negotiating, and entering a plea on terms that knowingly misrepresents the consequences of acceptance.2
See id. at 15-16.
All in all, this opinion provides accurate advice. But whether that advice is truly helpful is another issue. The committee’s opinon simply restates the clear doctrine and principles already set forth in Model Rule 3.8 and the corresponding comments. In so doing, it provides little additional gloss or guidance to prosecutors.
- Documented in the Nat’l Right to Counsel Comm., Constitution Project, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel (2009). ↵
- For example, “if the prosecutor knows the consequences of a plea–either generic consequences or consequences that are particular to the accused–the prosecutor must disclose them during the plea negotiation.” ↵