UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 97-39
The state reaches a plea agreement with a defendant and his counsel. When the matter is presented to a trial judge for the purpose of entering the plea, the judge disagrees with the plea agreement and refuses to accept the plea. The state has left its plea offer open, and the parties wish to appear before another circuit court judge for the purpose of having the guilty plea accepted.
QUESTION:
Once a judge has refused to accept a guilty plea, may it be presented to another judge for acceptance?
SUMMARY:
If the parties disclose, preferably on the record, that a guilty plea has previously been rejected and the reason(s) for the rejection, the plea may be presented to and accepted by another judge.
OPINION:
Rule 3.3 sets out the obligation of the bar to be candid with the court. "A lawyer shall not knowingly... [m]ake a false statement of material fact or law to a tribunal." Rule 3.3 (a)(1). In the commentary to the Rule, the drafting committee acknowledged there are circumstances under which the failure to make a disclosure is the equivalent as an affirmative misrepresentation for purposes of Rule 3.3(a)(1). The fact that a guilty plea had been previously offered to or discussed with a judge, who then chose not to accept the plea, is a material fact that would be of interest to any judge subsequently presented with the same guilty plea. Therefore, under Rule 3.3, it would have to be disclosed. Once the previous refusal of a guilty plea has been presented to a judge, there is no ethical impediment to the defendant entering a guilty plea and the judge's acceptance of such.