On May 9, 2019, the ABA released Formal Opinion 486 clarifying a prosecutor’s duties under Model Rules 1.1, 1.3, 3.8(a), (b), and (c), 4.1, 4.3, 5.1, 5.3, and 8.4(a), (c) and (d) when entering into plea bargains with persons accused of misdemeanors. According to the Opinion, prosecutors are duty bound to each charge incident to a plea has an adequate foundation. They must make sure the accused is informed of his/her right to counsel and the procedure for obtaining counsel. Prosecutors are not permitted in plea negotiations to jeopardize the accused’s ability to obtain counsel. Nor can they offer pleas on terms that knowingly misrepresent the consequences of acceptance of a plea. And they are not permitted to pressure or improperly induce an accused to accept a plea.
The Opinion notes that a prosecutor’s integrity is essential to the administration of criminal justice. A prosecutor has the responsibility of a minister of justice and not just as an advocate. The primary duty is to see that justice is done and not merely to convict. This is because the prosecutor represents the sovereign. Therefore, he/she should use restraint in the discretionary exercise of governmental power. During trial, a prosecutor makes decisions normally made by an individual client. Accordingly, those affecting the public interest should be fair to all. Moreover, in the system of criminal justice, the accused is to be given the benefit of all reasonable doubts.
Misdemeanors make up about 80% of all criminal prosecutions. Estimates are that prosecutions have doubled since 1972. “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.” Plea bargaining has become an essential component of the administration of justice. It is, therefore, imperative that there “be fairness in the securing of an agreement between the accused and the prosecutor.” Because of the vast increase in misdemeanor prosecutions, there is a tendency toward speedy dispositions at the expense of fairness of the result.
Conduct that would violate the Rules includes:
- Entering into plea negotiation before explaining the right to counsel;
- Using delay or threatening a harsher sentence to dissuade the accused from invoking the right to counsel;
- A requirement that accused persons, gathering en masse into the courtroom, must tell the clerk how they intend to plead;
- Using forms to obtain waivers of the right to counsel and other rights as a condition of negotiating a plea or entering into plea negotiations without ensuring that the accused understands his/her rights being waived;
- Permitting investigators to act as prosecutors and negotiate pleas;
- Advising the accused of the right to counsel but failing to provide a process for the accused to exercise the right to retain counsel or waive counsel prior to plea negotiation;
- Failing to inform indigent clients of their right to request a waiver of court fees associated with court-appointed counsel.
Rule 3.8(a) prohibits a prosecutor from filing a charge that is not supported by probable cause. A prosecutor’s workload that is too heavy to permit independent assessment of each charge and supervise other state actors responsible for the case may not be providing competent representation as Rule 1.1 requires or diligent representation as Rule 1.3 requires. A supervising prosecutor is duty bound to establishing policies, procedures and practices and methods of monitoring prosecutors and other state actors such that there is reasonable assurance of compliance with the prosecutor’s ethical obligations.