Kentucky High Court Upholds Attorney Ethics Rule Prohibiting Plea Agreements with ‘Ineffective Assistance’ Waivers
By Paul V. Kelly
Jackson Lewis P.C.
Jackson Lewis P.C.
Sep 3, 2014
| The Supreme Court of Kentucky has unanimously rejected a challenge by the local U.S.Attorney’s Office to Kentucky BarAssociation Ethics Opinion E-435, which states that the use of ineffective assistance of counsel (IAC) waivers in plea agreements violated Kentucky’sRules of Professional Conduct. U.S. v. Kentucky Bar Assn., 2013-SC-000270-KB(Aug. 21, 2014).It has become common practice in recent years in Kentucky and throughout the country for Department of Justice prosecutors to insist that a defendant electing to plead guilty sign a written plea agreement purporting to waive any later right to claim ineffective assistanceby defense counsel.According to the Kentucky high court, whether in state or federal court in that State, “either defense counsel orprosecutors inserting into plea agreement waivers of collateral attack, including IAC, violates our Rules of Professional Conduct.” The Courtheld that “the use of IAC waivers in plea agreements (1) creates a non-waivable conflict of interest between the defendant and his attorney, (2) operateseffectively to limit the attorney’s liability for malpractice, (3) induces,by the prosecutor’s insertion of the waiver into plea agreements, an ethical breach by defense counsel.” The decision also relies on a federal statutory provision, known as “the McDade-Murtha Amendment” (28 USC § 530B), requiring that federal prosecutors abide by state ethics laws.The Kentucky Bar Association adopted Ethics OpinionE-435 in late 2012, shortly after the National Association of Criminal DefenseLawyers (NACDL) adopted Formal Opinion 12-02, cited with approval in the Kentucky Supreme Courtdecision. The NACDL opinion determined that it was not ethical for a criminaldefense lawyer to participate in a plea agreement that bars collateralattacks in the absence of an express exclusion for prospective claims basedon ineffective assistance of counsel. The NACDL opinion further states thatprosecutors may not ethically propose or require such a waiver.The clear message from the Kentucky court is thatfederal prosecutors must adhere to and be bound by the same state ethicsrules as defense counsel. Consistentwith the McDade-Murtha Amendment, it reaffirms that state ethics rules andopinions govern the professional conduct of both criminal defense attorneys and prosecutors practicing in federal courts. |