After one judge refuses to accept a negotiated guilty plea, can the parties present the same plea to a different judge?

Plain-English summary

The state reached a plea agreement with a defendant and defense counsel. When the plea was presented to a trial judge for entry, the judge disagreed with the agreement and refused to accept the plea. The state left its plea offer open, and the parties wanted to appear before a different circuit court judge to have the guilty plea accepted. The question was whether, once a judge has refused a guilty plea, it may be presented to another judge for acceptance.

The committee answered that it may, subject to disclosure. It grounded the analysis in Rule 3.3, which provides that a lawyer shall not knowingly make a false statement of material fact or law to a tribunal (Rule 3.3(a)(1)), and noted the rule's commentary recognizing that a failure to disclose can, in some circumstances, be the equivalent of an affirmative misrepresentation. The committee concluded that the fact a guilty plea had previously been offered to and rejected by a judge is a material fact of interest to any judge later presented with the same plea, so under Rule 3.3 it must be disclosed.

Once the prior refusal has been disclosed to the second judge, the committee found no ethical impediment to the defendant entering the guilty plea and that judge accepting it.

Currency note

This opinion was issued in 1997, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: If one judge rejects a plea deal, can the parties take it to another judge?

A: The committee concluded yes, provided they disclose to the second judge that the plea was previously rejected and the reasons; preferably the disclosure is made on the record.

Q: Why must the prior rejection be disclosed?

A: Per the opinion, the prior rejection is a material fact under Rule 3.3, and its nondisclosure would be the equivalent of an affirmative misrepresentation to the second judge.

Q: Once disclosed, is there any remaining ethical bar to the second judge accepting the plea?

A: The committee found none; after the prior refusal is disclosed, there is no ethical impediment to the defendant entering the plea and the judge accepting it.

Background and rules framework

The opinion interpreted South Carolina RPC 3.3(a)(1), corresponding to Model Rule 3.3, which bars a lawyer from knowingly making a false statement of material fact or law to a tribunal, and relied on the rule's commentary that nondisclosure of a material fact can equate to an affirmative misrepresentation.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 3.3(a)(1) / Model Rule 3.3: candor toward the tribunal; false statement of material fact or law.

See also

• SC Bar Ethics Op. 05-03: Reporting a Lawyer's Lie
• SC Bar Ethics Op. 08-14: Hearsay in Affidavits

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-97-39/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

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.