Kentucky Supreme Court Upholds Ethics Opinion that Prohibits Waiver of IAC as a Condition in Plea Agreements

In a unanimous opinion rendered on August 21, 2014, the Supreme Court of Kentucky affirmed KBA Ethics Opinion E-435, which stated that: (1) a criminal defense lawyer may not advise a client with regard to a plea agreement that waives the client’s right to pursue a claim of ineffective assistance of counsel as part of the waiver of the right to collaterally attack a conviction covered by the plea agreement; and (2) a prosecutor may not propose a plea agreement that requires a waiver of the defendant’s or potential defendant’s right to pursue a claim of ineffective assistance of counsel relating to the matter that is the subject of the plea agreement. The KBA relied on Kentucky Rules of Professional Conduct 1.7 and 1.8(h) (Conflicts of interest), and Rule 3.8(b) (Special responsibilities of a prosecutor) in reaching its conclusions. The ethics opinion was adopted by the Kentucky Bar Association Board of Governors in November 2012 and published in March 2013 (a copy of the full ethics opinion may be accessed at http://www.kybar.org/).  The United States Attorneys for both the Eastern and Western Districts of Kentucky subsequently petitioned Kentucky’s highest court for review.

Oral arguments were heard before the full court on September 19, 2013. Scott West, DPA General Counsel and fellow NAPD member, successfully presented the Respondent’s argument on behalf of the KBA.

In the just released 35-page opinion, Chief Justice Minton, writing for the Court, agreed with the KBA and held that “the use of IAC waivers in plea agreements (1) creates a nonwaivable conflict of interest between the defendant and his attorney, (2) operates effectively to limit the attorney's liability for malpractice, and (3) induces, by the prosecutor's insertion of the waiver into plea agreements, an ethical breach by defense counsel." See  United States of America, By and Through the United States Attorneys for the Eastern and Western Districts of Kentucky v. Kentucky Bar Association, 2013-SC-000270-KB (Ky.Aug. 21, 2014). In its conclusion, the Court stated:
 

“We are duty-bound to regulate the legal profession within our borders.  Today, we are proactive in that role.  Attorneys practicing in this Commonwealth, whether state or federal, must comply with our ethics rules.  Accordingly, either defense counsel or prosecutors inserting into plea agreements waivers of collateral attack, including IAC, violates our Rules of Professional Conduct.”
 

This case has received widespread attention and been closely watched by courts and bar associations across the country.  The much anticipated decision by the Supreme Court of Kentucky is certain to have a broad national impact on the practice of criminal cases, both in terms of law and ethics.  It is a comprehensive, well-reasoned analysis that should be required reading for defenders and prosecutors alike.