Author: Brynn Stylinski, Associate Member, University of Cincinnati Law Review
In a system where nine out of ten criminal cases end in pleas, debate over the ethics of plea bargain content is common. On August 21, the Kentucky Supreme Court effectively ruled that plea bargains in the state may not ethically include waivers of the right to sue for ineffective assistance of counsel (IAC). In Kentucky Bar Ass’n, the court upheld Kentucky Bar Association Ethics Opinion E-435 (E-435), which states that criminal defense attorneys may not advise clients to accept plea bargains that contain IAC waivers, and federal prosecutors may not propose plea bargains that contain IAC waivers. The court’s rationales reflect current legal trends in criminal law, and this decision improves the quality of the criminal justice system in Kentucky. It holds all attorneys to a higher ethical standard, prevents inherent conflicts of interest, prevents prosecutors from limiting the ways in which defendants can challenge their convictions, and allows defendants to enforce their right to effective counsel without also having to show that attorney error led to them to sign an IAC waiver. If the issue is brought before other state courts, they would be wise to follow Kentucky’s example.
Rationale Behind E-435
E-435 is based in the Kentucky Supreme Court’s Rules of Professional Conduct (RPC). Specifically, it looks to RPC 3.130(1.7), which states that a lawyer shall not represent a client where a concurrent conflict of interest exists, i.e., when there is a “significant risk” that that the client’s representation will be “materially limited” by the lawyer’s personal interests. An exception in the Rules allows representation despite a conflict of interest where the lawyer reasonably believes that “competent and diligent representation” is possible. However, E-435 rejects this exception in the case of IAC waivers because IAC claims are based on the lawyer’s own conduct, and one can never reasonably believe that encouraging a client to sign an IAC waiver is “competent representation.” Although the RPC’s ban on agreements limiting a lawyer’s malpractice liability does not apply directly to IAC waivers, the opinion connected the restrictions on each because they are both based on attorney conduct. The opinion also found IAC waivers were inconsistent with the spirit of ensuring defendants’ access to adequate counsel and the role of the prosecutor as “minister of justice.” Finally, IAC waivers actually induce defense counsel to violate the rules of professional conduct.
The Rulings of Kentucky Bar Association
The U.S. Attorneys for the Eastern and Western Districts of Kentucky challenged the validity of E-435 on behalf of the United States in the Kentucky Supreme Court. The court’s analysis of E-435’s validity had two parts: (1) whether the Ethics Opinion violates the supremacy clause or conflicts with federal law, and (2) whether the Opinion correctly articulates the ethical concerns associated with allowing IAC waivers in plea bargains.
Part I: The Supremacy Clause and Federal Law
The court ruled that E-435 neither violates the supremacy clause nor conflicts with federal law. The United States argued that the Opinion conflicts with federal case law, statutes, and regulations that have explicitly allowed defendants to waive IAC claims in guilty pleas. The court rejected this argument, distinguishing the previous rulings as relating to whether a defendant may waive the right, and E-435 as relating to whether the prosecutor may include or a defense attorney may advise on the waiver in a plea bargain. Although the Federal Rules of Criminal Procedure provide that a prosecutor may include an IAC waiver in a plea agreement, those Rules do not prevent Kentucky from forbidding them. The court also found that E-435 did not violate the supremacy clause because 28 U.S.C. § 530B requires government attorneys to comply with state laws and rules. The court determined that E-435 was a state ethical rule and thus applicable to United States attorneys under federal precedent.
The court also found that there was no federal law contrary to E-435. The court acknowledged that the federal constitutional requirements of (1) effective counsel before accepting a plea and (2) communication of favorable pleas to the defendant might conflict with E-435’s requirement that defense attorneys not counsel a client on an IAC waiver. However it found that this would only be an issue if the prosecutor presented an IAC waiver, and E-435 prohibits them from doing so. The court also found that E-435 actually enforces the Sixth Amendment right to “effective” counsel by mandating conflict-free counsel. Thus, E-435 eliminates the ethical problems created by IAC waivers without contradicting federal law.
Part II: Articulation of Ethical Concerns
The court also held that E-435 correctly articulates ethical concerns over IAC waivers and is thus valid on its merits. Counseling a client on an IAC waiver is an “[u]nwaivable [c]onflict of [i]nterest” similar to implementing an agreement limiting malpractice liability. The court also found the rule to be both proactive and necessary, because lawyers are ethically obligated not to advise a client when there is a “substantial risk” that the advice will be “materially limited” by the lawyer’s “personal interest.” An IAC claim involves a lawyer’s personal interest because it is based on the lawyer’s own conduct and can damage a lawyer’s career and reputation. This conflict may not be solved by allowing a different attorney to advise a client about an IAC waiver, because every attorney interaction creates a potential IAC claim, and thus advice about an IAC waiver always involves a conflict of interest.
On the prosecutor’s side, E-435 addresses several ethical problems as well. Just as a defense attorney limits the risk to his or her reputation through an IAC waiver, so does the prosecutor. The Kentucky RPC do not explicitly address a prosecutor’s conflict of interest in using an IAC waiver to limit a defendant’s opportunity to obtain post-conviction relief. However, a conflict of interest is inherently present in a plea deal with an IAC waiver because it insulates the prosecutor from at least on type post-conviction challenge, and E-435 prevents this conflict. The Opinion also addresses the ethical concern over inducing another attorney to violate the rules of professional conduct. It prevents the prosecutor from using a plea that includes an IAC waiver to place a defendant in a take-it-or-leave-it position and inducing the defense to accept the IAC waiver. E-435 seeks to eliminate these conflicts of interest and holds all attorneys to a standard that keeps the entire legal system more honest and ethical.
Why Other States Should Follow the Kentucky Supreme Court’s Example
The Kentucky Supreme Court’s decision improves the state’s criminal justice system. It holds both prosecutors and defense attorneys to a higher ethical standard by removing the inherent conflict of interest in IAC waivers and preventing the ethical dilemmas they raise from ever occurring. Defendants benefit because they are guaranteed fair, unbiased advice when faced with a plea bargain that could change their lives forever. The court’s decision is based on a growing consensus among states about IAC waivers. As the issue is brought before other states, it would benefit them to follow Kentucky’s example and adopt opinions similar to E-435. As the court pointed out, ethics rules should be proactive. Waiting for formal ethics rule changes to address IAC waivers only invites unethical behavior in the meantime. By addressing the issue now, the Kentucky Supreme Court prevented it from becoming an epidemic, and other states should follow its example.
Likewise, E-435 holds prosecutors to a higher ethical standard by preventing an even greater ethical problem than that addressed by the court. With an IAC waiver, it would be too easy for a prosecutor to limit a defendant’s options for challenging his or her conviction. The Kentucky Supreme Court agreed with this idea when it noted that including an IAC waiver in a plea agreement is inconsistent with the role of the prosecutor as “minister of justice” and that the waiver could make a case unappealable. E-435 may prevent untold numbers of defendants who had an ineffective attorney from waiving a crucial right, and similar laws could do the same in other states. IAC waivers and other post-conviction waivers “insulate the plea and government and defense counsel’s respective actions from any review” making it nearly impossible for defendants to obtain relief. Current enforcement trends require that, in order to invalidate an IAC waiver, a defendant must prove that he did not knowingly accept an IAC waiver, and that he would not have accepted it but for the attorney’s prejudicial error. If every state were to adopt a rule similar to E-435, the criminal justice system would not waste resources determining the validity of the waivers, would protect defendants from incompetent attorneys, and would allow defendants to challenge their convictions under their full spectrum of rights. Attorneys’ knowledge of their vulnerability to IAC claims would encourage greater diligence among the legal community as a whole, and would thus raise the caliber of our legal system.
With such a large proportion of the nation’s criminal cases ending in pleas, ensuring that the lawyers who present the pleas do so without an inherent conflict of interest would make the legal system more ethical. Allowing IAC waivers creates inescapable conflicts of interest because the waivers encourage self-interested advice from legal counsel and insulate wrongly accepted pleas from appeal. E-435’s prohibition of IAC waivers in plea bargains avoids the waivers’ ethical problems, as well as the procedural issues of having to determine their validity. The rule also helps protect defendants from unwittingly waiving their rights. If every state were to adopt a rule like E-435, it would make the system both more ethical and more efficient, a combination that is usually hard to come by.
 U.S., ex rel. U.S. Attorneys ex rel. E., W. Districts of Kentucky v. Kentucky Bar Ass’n, 2013-SC-000270-KB, 2014 WL 4159988 (Ky. Aug. 21, 2014).
 Id. at *1; KBA Advisory Ethics Opinion, Formal Op. E-435 (2012) (As found in Bench and Bar, March 2013, at 34-35).
 KBA Advisory Ethics Opinion, Formal Op. E-435 (2012) (Citing RPC Rule 3.130(1.7)(a)(2)).
 Id. (Citing RPC Rule 3.130(1.7)(b)(1)).
 Id. (Citing RPC Rule 3.130(1.8)(h)(1)).
 Id. (Citing RPC Rule 3.130 (3.8)(b)); (8.4)(a)).
 U.S., ex rel. U.S. Attorneys ex rel. E., W. Districts of Kentucky v. Kentucky Bar Ass’n, 2013-SC-000270-KB, 2014 WL 4159988, at *2 (Ky. Aug. 21, 2014). The Court reviewed E-435 de novo.
 Id. at *2-8.
 Id. at *3.
 Id. at *6-7 (Citing Fed. R. Crim. P. 11(b)).
 Id. at *2-4 (Citing United States v. Colo. Supreme Court, 189 F.3d 1281, 1285, 1287-8 (10th Cir. 1999) (Whether the rule at issue is a “normative legal standard that guides the conduct of an attorney” is determined by (1) whether it is a rule that bars conduct recognized by consensus as inappropriate, (2) whether it is “ like a commandment dealing with morals and principles” which can also frequently be vague by nature as opposed to procedural or substantive law, and (3) whether it is “directed at the attorney herself.”)). The court ruled that E-435 passed this test.
 Id. at *5-6 (citing Padilla v. Kentucky, 559 U.S., 356, 373 (2010) (effective counsel required for pleas), and Missouri v. Frye, 132 S.Ct. 1399, 1408 (2012) (attorneys must communicate favorable pleas)).
 An attorney advising a client on the attorney’s own conduct is a conflict of interest. See Kentucky Bar Ass’n, 2014 WL 4159988, at *6. The Supreme Court has found “effective counsel” requires conflict-free counsel. See Holloway v. Arkansas, 435 U.S. 475, 480–90, 98 (1978); Mickens v. Taylor, 535 U.S. 162, 179 (2002)).
 Id. at *8. The court pointed out that waiving a method of post-conviction relief that could show a proximate cause of malpractice would limit liability for malpractice.
 Kentucky Bar Ass’n, 2014 WL 4159988, at *8-10.
 Id. at *11-12.
 Kentucky Bar Ass’n, 2014 WL 4159988, at *8
 Id. at *4. E-435 is based on a growing consensus as twelve out of fourteen states which have ruled on IAC waivers in plea agreements have found them unethical, and the remaining two recognized ethical concerns. Also, the ABA issued a resolution in opposition of IAC waivers and the National Association of Criminal Defense Lawyers issued a formal opinion declaring the participation in such plea agreements unethical.
 Id. at *8.
 Id. (Citing RPC Rule 3.130 (3.8 Cmt 1)).
 Alan Ellis, Todd Bussert, Stemming the Tide of Postconviction Waivers, Crim. Just., Spring 2010, at 28, 29
 Nancy J. King, Plea Bargains That Waive Claims of Ineffective Assistance – Waiving Padilla and Frye, 51 Duq. L. Rev. 647, 652-53 (2013) (citations omitted).