UNITED STATES OF AMERICA, BY AND THROUGH THE UNITED STATES ATTORNEYS FOR THE EASTERN AND WESTERN DISTRICTS OF KENTUCKY, MOVANT
KENTUCKY BAR ASSOCIATION, RESPONDENT
Released for Publication September 11, 2014.
[Copyrighted Material Omitted]
FOR MOVANT: Kerry Brent Harvey, United States Attorney, Eastern District of Kentucky, Charles P. Wisdom, Jr., Assistant United States Attorney, Eastern District of Kentucky.
FOR RESPONDENT: John Downing Meyers, Executive Director, Kentucky Bar Association, Thomas H. Glover, Chief Bar Counsel, Kentucky Bar Association, Brian Scott West, General Counsel, Department of Public Advocacy, David Jason Hale, United States Attorney, Western District of Kentucky, Terry Martin Cushing, Assistant United States Attorney, Western District of Kentucky.
FOR AMICUS CURIAE WESTERN KENTUCKY COMMUNITY DEFENDER, INC.: Francis William Heft, Jr. Office of the Federal Defender.
FOR AMICUS CURIAE LEGAL ETHICS PRACTITIONERS, LEGAL ETHICS PROFESSORS, AND NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS: Jerry J. Cox, Jerry J. Cox, P.S.C., John Wesley Hall, Jr., Joseph V. Aprile, II, Lynch, Cox, Gilman & Goodman, P.S.C.
FOR AMICUS CURIAE THE INNOCENCE NETWORK: Larry David Simon.
FOR AMICUS CURIAE WESTERN KENTUCKY COMMUNITY DEFENDER, INC.: Scott T. Wendelsdorf, Office of the Federal Defender.
IN SUPREME COURT
AFFIRMING KBA ETHICS OPINION E-435
MINTON, CHIEF JUSTICE
" [O]urs is for the most part a system of pleas, not a system of trials[.]"  Plea
bargaining is " not some adjunc to the criminal justice system; it is criminal justice system."  The pervasiveness of plea bargain agreements in the Courts of the Commonwealth cannot be overstated. Today, we deal with the ethical ramifications of one aspect of this " horse trading between prosecutor and defense counsel[.]" 
The United States Attorneys for the Eastern and Western Districts of Kentucky (United States) have moved this Court to review the merits of Kentucky Bar Association (KBA) Ethics Opinion E-435, an ethics advisory opinion, which finds the use of ineffective-assistance-of-counsel (IAC) waivers in plea agreements violates our Rules of Professional Conduct. We agree with the KBA tat the use of IAC 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. Consequently, we hold that E-435 accurately states our ethical rules.
I. FACTUAL AND PROCEDURAL HISTORY.
In November 2012, the KBA Board of Governors formally adopted E-435 and 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 this Court for review of E-435 under Supreme Court Rule (SCR) 3.530(12). The use of IAC waivers is a common practice in the United States' plea negotiations, so it argues it has been aggrieved by E-435's declaration.
The KBA undertook to answer two questions through E-435:
(1) May a criminal defense lawyer advise a client with regard to a plea agreement that waives the client's right to pursue a claim of ineffective assistance of counsel as part of the waiver of the right to collaterally attack a conviction covered by the plea agreement?
(2) May a prosecutor propose a plea agreement that requires a waiver of the defendant's or potential defendant's right to pursue a claim of ineffective assistance of counsel relating to the matter that is the subject of the plea agreement?
The KBA answered both questions in the negative. According to the KBA, the defense attorney's personal interest " in not having his or her representation of the client challenged on the basis of [IAC]" and " in not having his or her representation of the client found to be constitutionally
ineffective[,]" " create[d] a 'significant risk' that the representation of the client 'will be materially limited." ' The KBA relied on SCR 3.130-1.7, our rule dealing with conflicts of interest, in reaching this conclusion. With regard to question 1, the KBA additionally found counseling defendants on an IAC waiver violated SCR 3.130-1.8(h), our rule prohibiting any " agreement prospectively limiting the lawyer's liability to a client for malpractice[.]" The KBA acknowledged -1.8(h) does not explicitly " apply to the plea agreement situation" ; but much like an IAC claim, " the underlying basis for a malpractice claim is the attorney's own professional conduct." And " [i]f a lawyer ethically cannot advise a client about a malpractice limitation," then " a lawyer ethically cannot advise a client about an [IAC] waiver."
For question 2, the KBA focused primarily on the special role of the prosecutor as a " minister of justice[.]" In sum, the KBA found it was " inconsistent with the prosecutor's role as a minister of justice and the spirit of SCR [3.130-](3.8(b)) for a prosecutor to propose a plea agreement that requires the individual to waive his or her right to pursue a claim of [IAC]. In making such a proposal, a prosecutor is assisting or inducing another lawyer . . . to violate the Rules of Professional Conduct[.]"
Because this Court is constitutionally charged with the regulation of the practice of law in the Commonwealth and the declarations made by E-435 are matters of statewide concern, we granted the United States' petition.
Our Rules of Professional Conduct permit the KBA's Ethics Committee to issue both informal and formal ethics opinions to provide clarity to members of the bar regarding what conduct is permissible by a licensed attorney. The procedure for this is set out in SCR 3.530. Initially, the Ethics Committee provides a recommendation to the KBA Board of Governors for approval. " If the recommended opinion is approved by three-fourths of the Board of Governors, it carries the weight of an advisory opinion. . . . On proper request by an aggrieved party, we have the authority to evaluate the opinion and determine whether it accurately states the law."  We do so today and, of course, because of the advisory nature of E-435, we are not bound by its terms. In fact, while the KBA functions as our agent in disciplinary matters, the Kentucky Constitution establishes this Court as the ultimate rulemaking body for ethical attorney conduct. Consequently, we engage in de novo review.
A. E-435 does not Violate the Supremacy Clause or Conflict with Federal Law.
Before proceeding with our review, we must address an issue of weighty concern. The United States asserts that E-435 violates the Supremacy Clause because it stands in direct conflict with federal case law, statutes, and regulations. If we accept this argument, we would be compelled to vacate E-435 as applied to the United States. For several reasons, we wholly
disagree with the United States' " remarkable"  notion.
The Supremacy Clause, " eponymously enough,"  dictates that the Constitution, Laws of the United States, and United States' treaties " shall be the supreme law of the land[.]" In operation, the Supremacy Clause invalidates state laws that " interfere with, or are contrary to,"  federal law.
The amenability of federal-government attorneys to any ethics guidelines--let alone state ethics guidelines--has been the subject of debate. Before 1998, attempting to determine what ethics rules applied to federal attorneys was nearly a fool's errand. Following a protracted battle over the practice of certain federal prosecutors who, despite ethics prohibitions, made direct contact with persons represented by counse1, Congress enacted 28 U.S.C. § 530B, commonly called the McDade Amendment. This law attempted to settle this issue by binding all government attorneys to " State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney's duties, to the same extent and in the same manner as other attorneys in that ...