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Kentucky Supreme Court Forbids Using Plea Deals to Waive Claims against Bad Legal Advice

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Summary: Supreme Court of Kentucky upholds ethics opinion of the Kentucky Bar Association prohibiting the practice of waiving rights to appeal ineffective-assistance-of-counsel in plea deals.

Last week, the Supreme Court of Kentucky upheld Ethics Opinion E-435 of the Kentucky Bar Association that found waiving the rights to appeal against ineffective-assistance-of-counsel in plea deals violates the Kentucky bar’s Rules of Professional Conduct. The published opinion was made in response to appeals challenging the ethics rule by the federal government through the U.S. Attorneys for the Eastern and Western districts of Kentucky.

Put simply, it is now law for attorneys in Kentucky that plea deals cannot be used to compel bargainers to waive away their rights to challenge bad advice by lawyers.

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Earlier, the Kentucky Bar Association had passed their Ethics Opinion E-435 saying it violated the rules of professional conduct to use plea deals to waive rights against ineffective assistance of counsel. The KBA Board of Governors, after formally adopting the new rule, published it in the March 2013 issue of Bench & Bar the KBA’s monthly publication.

A month later the United States Attorneys of both the Eastern and Western Districts of Kentucky petitioned the Kentucky Supreme Court for review of the ethics rule.

In the unanimous decision, Justice John D. Minton severely questioned the plea deal system remarking even in the opening paragraph of the opinion with citations from other precedents, “”[O]urs is for the most part a system of pleas, not a system of trials[.]” Plea bargaining is “not some adjunct to the criminal justice system; it is the criminal justice system.” … Today, we deal with the ethical ramifications of one aspect of this “horse trading between prosecutor and defense counsel[.]””

Without mincing words, the court stated, “We agree with the KBA that the use of IAC [ineffective-assistance-of-counsel] waivers in plea bargain 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.”

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