It held 308(E) was not preempted as to trial subpoenas as an earlier challenge to an identically worded rule had been rejected by a 10th Circuit panel. However, the majority held that 308(E) is preempted as to grand jury subpoenas because, while it is an ethics rule which is applicable to federal prosecutors by 28 USC 530B, it conflicts with federal grand jury practice by adding requirements to grand jury subpoenas beyond those in Supreme Court precedent and thus intrudes in to the space assigned to grand juries by the Constitution and grand jury power to obtain information from any source and its broad power to subpoena based on reasonable possibilities to discover relevant information by adding additional requirements to and thus impedes the accomplishment of federal criminal investigations using a grand jury. The majority finally rejected Court’s challenge to the injunction as it only enjoined enforcement of preempted provisions and allowed discipline when privileged information is sought.

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 district court later entered an Order in accordance with that recommendation on June 14, 2011.The “no contact” rule provides that a lawyer shall not communicate (or cause another to communicate) about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law. N.Y. Rule of Prof’l Conduct 4.2(a). This rule applies to all federal government attorneys practicing within the State of New York by virtue of 28 U.S.C. § 530B(a). Most states have a similar rule of professional conduct preventing lawyers from communicating with represented parties.In its report and recommendation, the magistrate judge analyzed application of the rule to the relevant facts of the case.