News Release

In Landmark Decision, Kentucky Supreme Court Upholds Ethics Opinion Barring Plea Agreements Containing Waivers of Ineffective Assistance of Counsel Claims

Washington, DC (August 21, 2014) – In a landmark decision handed down today in U.S. v. Kentucky Bar Assn., the Supreme Court of Kentucky unanimously rejected a challenge by the federal government, by and through its federal prosecutors in that jurisdiction, to Kentucky Bar Association Ethics Opinion E-435, which states that the use of ineffective assistance of counsel (IAC) waivers in plea agreements violates Kentucky's Rules of Professional Conduct.

According to the court, this means that whether in state or federal court in Kentucky, "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 nonwaivable 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 the McDade-Murtha Amendment (28 USC § 530B), which requires that federal prosecutors abide by state ethics laws. The National Association of Criminal Defense Lawyers (NACDL) advocated for passage of this important check on prosecutorial misconduct and has worked to defeat efforts to repeal or dilute the measure.

The Kentucky Bar Association adopted Ethics Opinion E-435 in late 2012, shortly after NACDL adopted Formal Opinion 12-02, cited in today's Kentucky Supreme Court decision. The NACDL opinion determined that it is 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. It also describes an attorney's duty when the government attempts to extract such a waiver.

NACDL filed an important amicus curiae brief joined by numerous legal ethics professors and practitioners in U.S. v. Kentucky Bar Assn. and was also afforded the opportunity to present oral argument before the Supreme Court of Kentucky in this matter. 

NACDL President Theodore Simon said: "In a well written tour de force of state and federal jurisprudence, the Kentucky Supreme Court unequivocally and unanimously recognized the unsurprising proposition: that federal prosecutors must adhere to and be bound by the same ethical rules as defense lawyers. As such, the opinion, citing NACDL Board Policy as authority, makes clear it is unethical for a prosecutor to suggest or a defense lawyer to agree that a defendant may waive claims of ineffective assistance of counsel in plea agreements. On behalf of NACDL, I want to express my gratitude and pride in the work of both the Kentucky Bar Association and the NACDL team in this historic case."

NACDL Past President John Wesley Hall, a nationally-recognized expert on criminal defense ethics, was counsel of record and co-author of NACDL's joint amicus brief, and he presented oral argument on behalf of amici to the Kentucky Supreme Court in this case. Upon reviewing today's decision, he said, "This court is quite serious about the unenforceability of ineffective assistance waivers in plea agreements, even in federal court, and that federal prosecutors are and must be bound by state ethics rules under § 530B where they practice. Now we have an appellate court, in a lengthy and compelling opinion, joining many ethics opinions on the subject. In the decision, the court rightly observed at the very opening that the American criminal justice system is ‘for the most part a system of pleas, not a system of trials' and went on to recognize that ‘plea agreements are often essentially contracts of adhesion' that often come with ‘a take-it-or-leave-it tone.'"

Louisville Attorney Vince Aprile, counsel of record and co-author of NACDL's joint amicus brief, said: "The Kentucky Supreme Court's opinion today resolved emphatically the right of state ethics rules and opinions to govern the professional conduct of both criminal defense attorneys and prosecutors practicing in federal courts. But, equally important, the Kentucky Supreme Court has presented thorough analyses of the ethical pitfalls that face both a criminal defense attorney and a prosecutor, whether state or federal, when dealing with plea agreements that require the defendant to waive his claim of ineffective assistance of the lawyer representing him in the plea negotiations. This opinion should stand as a blueprint for other states to follow as they address for the first time whether such waiver agreements require both criminal defense attorneys and prosecutors to violate the applicable norms of professional responsibility."

A link to the Supreme Court of Kentucky's decision in U.S. v. Kentucky Bar Association is available here.

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A link to NACDL's Formal Opinion 12-02 is available here.

A link to NACDL's joint amicus curiae brief in U.S. v. Kentucky Bar Association is available here

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Ivan J. Dominguez, Director of Public Affairs & Communications, (202) 465-7662 or for more information.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.