The American Bar Association published a formal ethics opinion last week advising prosecutors of their duties in plea bargaining with defendants charged with misdemeanor offenses. The opinion is one part scathing indictment of the process for prosecuting petty offenses across the country and one part ethical advice for prosecutors. ­

The criticism. ABA Formal Opinion 486 (May 9, 2019) cites legions of research supporting the following observations:

• Misdemeanors comprise 80 percent of state criminal dockets.
• The number of misdemeanor prosecutions has doubled since 1972.
• This expansion has had a “‘concentrated impact on communities of color.’”
• Most defendants plead guilty at the first setting of the case.
• Dockets are overcrowded, and each individual case may be afforded only a few minutes.
• Collateral consequences resulting from misdemeanor convictions have expanded.
• Some prosecutors are negotiating plea agreements in a manner that is inconsistent with the accused’s right to counsel and the duties set forth in the Model Rules of Professional Conduct.

The ethical issues. The opinion cites the following methods of negotiated plea agreements that have been documented and that violate the model rules:

• Requiring or encouraging plea negotiations with a prosecutor before the right to counsel has been raised;
• Using delay or the prospect of a harsher sentence to dissuade the accused from invoking the right to counsel;
• Gathering arrestees into court and instructing them as a group, prior to any advice regarding right to counsel or other rights, that they must tell the clerk how they intent to plead;
• Using forms to obtain waiver of the right to counsel and other rights as a condition of negotiating a plea or following a negotiation without confirming the defendant’s understanding;
• Permitting police officers to act as prosecutors and negotiate pleas;
• Advising defendants of the right to counsel but failing to provide a procedure for asserting or waiving the right before plea negotiations; and
• Failing to inform indigent defendants about how to request waiver of fees for court-appointed counsel.

Rule 3.8. The opinion focuses on how a prosecutor’s special obligations under Model Rule 3.8 affect her role in negotiating plea bargains for misdemeanor offenses. Though Rule 3.8 of the North Carolina Rules of Professional Conduct differs in some respects from the model rule, none of those differences are pertinent to the provisions discussed in the opinion.

No pc, no prosecution. The first relevant obligation under Rule 3.8 is that the prosecutor refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause. The opinion deems it “axiomatic that a prosecutor must actually exercise informed discretion with respect to the selection and prosecution of each charge.” Formal Opinion 486 at 8. Thus, it states, “a prosecutor may not negotiate pleas without first making an independent assessment of the relevant facts and law for each charge.” Id. The opinion contemplates that this process may require more than reviewing the citation and police report, noting:

[I]n some jurisdictions the volume of misdemeanor cases and their relatively lower stakes may dispose a prosecutor to rely uncritically on a police report or citation and a criminal background check. Unless the prosecutor has reasonable confidence in the thoroughness of the fact finding and the evenhandedness of the judgment of other law enforcement officers who prepare the supporting documents and investigation, reliance on them is likely to be misplaced and the very discretion the Rule is designed to protect may be abused.

Id.

The opinion goes on to state that if a prosecutor’s workload is too heavy to permit this sort of independent assessment, that fact may prevent the prosecutor from acting with the competence and diligence required by Rules 1.1 and 1.3.

Assure right to counsel and do not seek waivers from unrepresented persons. Rule 3.8(b) requires a prosecutor to make reasonable efforts to assure that an accused person has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel. Rule 3.8(c) prohibits a prosecutor from seeking to obtain from an unrepresented person a waiver of important pretrial rights. The opinion concludes that under these rules, a prosecutor may not make a plea offer or seek a waiver of the right to counsel before making reasonable efforts to ensure that the accused has been advised of the right to counsel, the procedure for obtaining counsel, and has been given a reasonable opportunity to exercise that right. Moreover, a prosecutor may not pressure, advise, or induce acceptance of a plea or waiver of the right to counsel while an unrepresented accused is deciding whether to invoke or has initiated the process to invoke that right.

Other rules governing plea bargaining with an unrepresented accused. The opinion also addresses constraints that Model Rules 4.1 (Truthfulness in Statements to Others), 4.3 (Dealing with Unrepresented Persons) and 8.4(c) (Misconduct (dishonesty, fraud, deceit or misrepresentation)) place on a prosecutor’s conduct when negotiating a plea bargain with an unrepresented person. Here too, the corresponding North Carolina Rules do not differ from the provisions of the model rules discussed in the opinion in any significant respect.

The opinion emphasizes the vulnerability of an unrepresented person who “faces the vast array of resources at the prosecutor’s disposal as well as the prosecutor’s legal expertise at a moment in which, even in misdemeanor cases, substantial liberty interests and financial security are in jeopardy.” Id. at 14. It also notes the adverse interests of the prosecutor and the accused. Accordingly, it concludes, a prosecutor may not offer “legal advice regarding the substance of the plea, the process of its negotiation and entry, or the consequences incident to conviction.” Id. Yet the prosecutor “can and sometimes must disclose material information regarding the substance of the plea, the process of its negotiation and entry, and known consequences of a conviction to an unrepresented person.” Id. (emphasis added).

To elucidate the distinction between the prohibition and affirmative obligation, the opinion states that when “a prosecutor knows from the charge selected, the accused’s record, or any other information that certain collateral consequences or sentence enhancements apply to a plea,” the following statements would constitute prohibited misrepresentations:

“Take this plea for time served and you are done, you can go home now.”

“This is a suspended sentence, so as long as you comply with its terms, you avoid jail time with this plea.”

“You only serve three months on this plea, that’s the sentence.”

Id. at 15.

A few thoughts. Some of the problems identified in the first part of the opinion may not exist in North Carolina. For one thing, law enforcement officers never serve as prosecutors here, though they may be afforded input in the plea bargaining process.

For another, district court judges routinely advise defendants of the right to counsel at the first setting of a misdemeanor case and have formalized procedures for accepting waivers of the right to appointed counsel and the right to all counsel.

That’s not to say that North Carolina’s procedures are perfect. In some instances, counsel could be appointed even earlier. G.S. 7A-146 permits a chief district court judge to designate certain magistrates to appoint counsel, and chief district court judges in a handful of mostly urban districts have granted magistrates that authority. With the proper authorization, magistrates can appoint counsel as early as a person’s initial appearance.

Moving beyond systemic issues and on to the specific ethical advice, I can imagine a prosecutor finding some aspects of the opinion impractical and frustratingly contradictory. The opinion faults prosecutors for relying uncritically on police reports and citations. Yet, what are they to do? Conduct a separate investigation of the hundreds of misdemeanor offenses that appear on a daily district court docket?

The opinion states that prosecutors must not seek to obtain a waiver of important pretrial rights from an unrepresented person. Suppose an unrepresented person has been jailed for several days on a misdemeanor charge and the State is agreeable to a sentence of time served. The opinion suggests that the prosecutor must refrain from extending such an offer until counsel is appointed. Yet, absent intervention from the court, this may result in the person spending additional days in jail.

Finally, there isn’t much daylight between the opinion’s dos and don’ts of plea bargaining with an unrepresented person. In addition, a North Carolina prosecutor’s ability to disclose known consequences is limited by formal ethics opinion RPC 189, which rules that members of a district attorney’s staff may not give legal advice about pleas to lesser included infractions to an unrepresented person charged with a traffic infraction.

Your impressions. If you have thoughts about either part of the opinion, please share them using the comment feature below.

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