Waiver Of Ineffective Assistance Claims As Part Of Plea Bargain Violates Ethics Rules

The Kentucky Supreme Court has affirmed a Bar Association Ethics Opinion that

...deals[s] with the ethical ramifications of one aspect of..."horse trading between prosecutor and defense counsel."

The United States Attorneys for the Eastern and Western Districts of Kentucky had sought review of Ethics Opinion E-435, which found that the use of prospective waivers of ineffective assistance of counsel claims as part of a plea bargain violated governing ethics rules.

The court confirmed that such waivers create a non-waivable conflict of interest between defense counsel and the client, improperly limited the defense attorney's liability for client malpractice and "induce[], by the prosecutor's insertion of the waiver into plea agreements, an ethical breach by defense counsel."

The opinion was authored by Chief Justice Minton. (Mike Frisch)