Kentucky Supreme Court Flexes Its Muscle, Rules Unanimously That Lawyers Cannot Ethically Require Their Clients To Waive Future Malpractice Claims When Advising Clients To Accept Plea Deals, Even In Federal Courts.

 
Ky. high court rejects U.S. plea bargain clause

In an unusual case pitting the power of federal government against that of the Kentucky Supreme Court, the court ruled unanimously Thursday that federal prosecutors may not force defendants in plea bargains to waive the right to sue their lawyers for ineffective counsel.

The U.S. attorneys for the western and eastern districts of Kentucky challenged a state ethics opinion adopted in 2012 that said it is unethical for defense lawyers to advise clients to accept such deals.

The Kentucky Bar Association said there is an inherent conflict of interest when a lawyer advises a client to drop a future malpractice claim. The bar also said it is unethical for prosecutors to recommend such deals.

Writing for a unanimous Supreme Court, Chief Justice John D. Minton agreed, saying that it is unethical for prosecutors, as "ministers of justice," to induce defendants to waive their right to pursue a claim of ineffective counsel or to induce a defense lawyer to violate the Rules of Professional Conduct.

Minton wrote that the case is important because, as the U.S. Supreme Court once said, "ours is for the most part a system of pleas, not a system of trials."

He said the "pervasiveness of plea bargains — horse trading between prosecutor and defense counsel — cannot be overstated."

Prosecutors say waivers of the right to sue for ineffective counsel bring finality to cases and avoid years of subsequent litigation.

U.S. Attorneys David J. Hale and Kerry Harvey noted that 10 of 12 federal circuit court of appeals have said they are legal.

They also contended that the state was violating the supremacy clause of the federal constitution by telling federal prosecutors what to do.

But the Supreme Court said that it alone has the power to regulate lawyer ethics, and that the ethics opinions governs only lawyers — defense attorneys and prosecutors — not defendants.

Minton also noted that Justice Department rules say its prosecutors must follow ethics rules in the state where they practice.

Stephanie Collins, spokeswoman for the Western District, said in a statement that "we are grateful that the Kentucky Supreme Court reviewed the ethics opinion," which she said the office is studying.

Prosecutors in the office had stopped including the waivers since the ethics opinion was adopted in November 2012.

Thomas Glover, the KBA's chief bar counsel, said he is pleased with the ruling and that Kentucky lawyers will be pleased with it as well.

Editor's comment: Just require your clients to make the choice only, as to whether or not to accept a plea deal.

Problem solved!