Florida Bar’s Board of Governors approves Advisory Opinions related to waivers of ineffective assistance and prosecutorial misconduct and permitting lawyers to authorize non-lawyers to use E-Portal credentials

Hello everyone and welcome to this Ethics Alert blog Update which will discuss the approval of Ethics Opinions 12-1 and 12-2 by the Florida Bar Board of Governors of The Florida Bar at its meeting on December 7, 2012.  Advisory Opinion 12-1 can also be viewed online at http://www.floridabar.org/tfb/TFBETOpin.nsf/b2b76d49e9fd64a5852570050067a7af/6a2611d9cdcc8db485257ad00070e3fb!OpenDocument and Advisory Opinion 12-2 can be viewed at http://www.floridabar.org/tfb/TFBETOpin.nsf/b2b76d49e9fd64a5852570050067a7af/4e9e9f5062025c5a85257ad00071b560!OpenDocument.

As I have stated in my previous Ethics Alerts, the Professional Ethics Committee of The Florida Bar, after extensive debate and review, issued proposed Advisory Opinion 12-1, which determined that it is unethical for a criminal defense lawyer to advise a client to accept a plea bargain that prevents the client from raising future claims of ineffective assistance of counsel or prosecutorial misconduct.  The opinion also states that it is unethical for prosecutors to offer such a plea condition because it could induce defense attorneys to act unethically and is prejudicial to the administration of justice.  The Florida Bar’s Board of Governors reviewed and approved the opinion at its meeting on 12/7/12 and it is now final.

The Florida Bar’s Board of Governors also approved proposed Advisory Opinion 12-2 at its meeting on 12/7/12 which opines that lawyers may permit non-lawyers to use the lawyer’s access credentials for filing documents with a court using the E-Portal.  The executive summary states that “(t)he lawyer must properly supervise the nonlawyer, should monitor the nonlawyer’s use of the E-Portal, and should immediately change the lawyer’s password if the nonlawyer employee leaves the lawyer’s employ or shows untrustworthiness in use of the E-Portal.”

Bottom line:  The controversial Advisory Opinion 12-1 and the not so controversial Advisory Opinion 12-2 are now final. As I have said in the past, Ethics Advisory Opinions are not binding or precedential; however, they can be and are used for guidance by lawyers and the basis for prosecution by The Florida Bar if they are not followed.

Be careful out there!

Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

About jcorsmeier

Joseph A. Corsmeier is an “AV” rated attorney practicing in Clearwater, Florida. He concentrates his practice primarily in the areas of defense of attorney disciplinary matters before The Florida Bar, attorney admission matters before the Florida Board of Bar Examiners, and professional license and disciplinary matters before the Boards of the State of Florida. He provides expert analysis and opinion on conflict of interest and other attorney disqualification and legal malpractice issues and he testified as an expert in the Florida courts. He served as an Assistant State Attorney in the Sixth Judicial Circuit from 1986 to 1990 where he prosecuted felonies exclusively from June 1987, and as Bar Counsel for The Florida Bar’s Department of Lawyer Regulation from 1990 to 1998. He also practices in the areas of estate planning and Medicaid qualification, workers’ compensation, and labor law. Mr. Corsmeier is the author of numerous articles for various bar publications, has spoken at numerous local and statewide seminars on various topics, including ethics and professionalism, and was an instructor of legal ethics for paralegals at Rollins College until the Tampa campus closed. He received his undergraduate degree from Florida State University and his J.D. from Mercer University. He is admitted to practice in all Florida Courts, the Supreme Court of the United States, the United States Court of Appeals for the Eleventh Circuit, and the Middle District of Florida. He is a member of The Florida Bar, American Bar Association, the Association of Professional Responsibility Lawyers, and the Clearwater and St. Petersburg Bar Associations.
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