Kentucky’s Top Court Upholds Bar on Ineffective-Assistance-of-Counsel Waivers

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).[1] 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.[2] 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.

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