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October 23, 2014

Kentucky High Court Upholds Attorney Ethics Rule Prohibiting Plea Agreements with ‘Ineffective Assistance’ Waivers

The Supreme Court of Kentucky has unanimously rejected a challenge by the local U.S. Attorney’s Office to Kentucky Bar Association Ethics Opinion E-435, which states that the use of ineffective assistance of counsel (IAC) waivers in plea agreements violated Kentucky’s Rules 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 assistance by defense counsel.

According to the Kentucky high court, whether in state or federal court in that State, “either defense counsel or prosecutors inserting into plea agreement waivers of collateral attack,   including IAC, violates our Rules of Professional Conduct.” The Court held that “the use of IAC waivers in plea agreements (1) creates a non-waivable conflict of interest between the defendant and his attorney, (2) operates effectively 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 Opinion E-435 in late 2012, shortly after the National Association of Criminal Defense Lawyers (NACDL) adopted Formal Opinion 12-02, cited with approval in the Kentucky Supreme Court decision. The NACDL opinion determined that it was not ethical for a criminal defense lawyer to participate in a plea agreement that bars collateral attacks in the absence of an express exclusion for prospective claims based on ineffective assistance of counsel. The NACDL opinion further states that prosecutors may not ethically propose or require such a waiver.

The clear message from the Kentucky court is that federal prosecutors must adhere to and be bound by the same state ethics rules as defense counsel.  Consistent with the McDade-Murtha Amendment, it reaffirms that state ethics rules and opinions govern the professional conduct of both criminal defense attorneys and prosecutors practicing in federal courts.

Jackson Lewis P.C. © 2014

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About this Author

Paul V. Kelley, White Collar Criminal Defense Attorney, Jackson Lewis Law Firm
Shareholder

Paul V. Kelly is a Shareholder in the Boston office of Jackson Lewis P.C. Mr. Kelly has been a practicing trial lawyer for over 30 years, with extensive experience in white collar criminal defense, internal investigations, complex civil litigation and crisis management.  He is Chair of the firm’s White Collar & Government Enforcement practice group.  A former sports industry executive, he is also Co-Chair of the firm’s Collegiate & Professional Sports Industry practice group.

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