In May 2019, The American Bar Association Standing Committee on Ethics and Professional Responsibility released Formal Opinion 486, addressing a prosecutor’s obligations when negotiating a plea agreement for a misdemeanor charge with an unrepresented individual. Prosecutors
The opinion emphasizes that prosecutors’ duty to ensure that each charge has an adequate foundation in fact and in law and notes the “categorical difference” between the role of a typical lawyer advocate and that of a prosecutor: prosecutors must seek justice, not mere convictions.
Formal Opinion 486 enumerates the many obligations for prosecutors under the ABA Model Rules of Professional Conduct while citing national statistics illustrating that misdemeanors comprise 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,” of defendants plead guilty at the initial appearance, and often do not understand the potential repercussions of a plea in the context of employment, immigration status and a wide range of public services.
The opinion notes: “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 emphasizes that: “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.”
To read Formal Opinion 486 click here.
