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United States v. Kentucky Bar Ass'n

Supreme Court of Kentucky

August 21, 2014

UNITED STATES OF AMERICA, BY AND THROUGH THE UNITED STATES ATTORNEYS FOR THE EASTERN AND WESTERN DISTRICTS OF KENTUCKY, MOVANT
v.
KENTUCKY BAR ASSOCIATION, RESPONDENT

Released for Publication September 11, 2014.

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[Copyrighted Material Omitted]

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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.

OPINION

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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[.]" [1] Plea

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bargaining is " not some adjunc to the criminal justice system; it is criminal justice system." [2] 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[.]" [3]

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).[4] 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

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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.

II. ANALYSIS.

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." [5] We do so today and, of course, because of the advisory nature of E-435, we are not bound by its terms.[6] In fact, while the KBA functions as our agent in disciplinary matters,[7] the Kentucky Constitution establishes this Court as the ultimate rulemaking body for ethical attorney conduct.[8] 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[9] 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

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disagree with the United States' " remarkable" [10] notion.

The Supremacy Clause, " eponymously enough," [11] 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," [12] 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.[13] Following a protracted battle over the practice of certain federal prosecutors who, despite ethics prohibitions, made direct contact with persons represented by counse1,[14] Congress enacted 28 U.S.C. § 530B, commonly called the McDade Amendment.[15] 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 State." The United States Attorney General, under § 530B, is vested with the authority to " make and amend rules of the Department of Justice to assure compliance with [§ 530B]."

To provide guidance to government attorneys, the Attorney General issued 28 C.F.R. § 77.1-.4. These regulations put some flesh to the § 530B bone. The relevant scope of § 530B covers " rules enacted or adopted by any State . . . or by any federal court, that prescribe ethical conduct for attorneys and that would subject an attorney . . . to professional discipline, such as a code of professional responsibility." [16] Section 530B's application to E-435 is clear.

According to the United States Attorney General, § 530B " requires Department attorneys to comply with state and local federal court rules of professional responsibility[.]" [17] Going further, § 530B " imposes on Department attorneys the same rules of professional responsibility that apply to non-Department attorneys" ; [18] and Department attorneys are required to comply with state ethical rules " to the same extent and in the same manner as other attorneys in that State[.]" [19]

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But § 530B should not " be construed in any way to alter federal substantive, procedural, or evidentiary law [.]" [20] On its face, this provision appears to be an attempt at federal preemption through regulation. Normally, when Congress has explicitly expressed its intent to preempt state law; " a reviewing court's task[, therefore,] is reduced to determining the scope of that intended preemption." [21] This Court, acting in review of possible federal preemption, " must consider not only the language of the statute but also the statute's legislative history[,]" which, despite its debated role in interpretative methodology,[22] can serve as " an important indicator of Congress's intent." [23]

Our " interest in the professional conduct of attorneys involved in the administration of criminal justice[, however,] is of special importance." [24] So strong is this " traditional and primary responsibility" that it " call[s] for exceptional deference by the federal courts." [25] That the regulation of attorneys is an area traditionally occupied by the States is not up for dispute. When faced with attempted Congressional action in such an area, as we are here, " we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." [26] But, lilt is often a perplexing question whether Congress has precluded state action or by the choice of selective regulatory measures has left the police power of the States undisturbed except as the state and federal regulations collide." [27] Even without § 530B, the Supremacy Clause demands E-435's lurking constitutional concerns be resolved.[28]

To this point, the United States directs our attention to the overwhelming support for IAC waivers throughout the federal circuit courts of appeals. As the United States' argument goes, these decisions make up the applicable " federal substantive law" on the issue that E-435 attempts

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to alter erroneously. We concede that federal jurisprudential support for the waivers at issue here is nearly unanimous. Our research indicates that every federal circuit to consider the validity of an IAC waiver--ten out of twelve--has explicitly permitted defendants to plead guilty and waive collateral review, including IAC.[29] Undoubtedly, this case law is substantial and persuasive, if we were deciding, on its merits, whether a defendant could waive an IAC claim. But we are not deciding that issue. The obligations of attorneys are the real focus of this appeal. The KBA Ethics Committee, in any event, is without jurisdiction to issue opinions on such questions of law.[30] So this Court's review of an IAC waiver's validity in the context of a plea agreement waits for another day.

1. E-435 does not Violate the Supremacy Clause Because it is an Ethical Rule Applicable to the United States Under § 530B.

To date, there is a paucity of decisions interpreting § 530B and its associated regulations. Of course, the United States primarily cites federal decisions holding government attorneys are not subject to particular state ethics rules.[31] These decisions are minimally persuasive because the ethics rules at issue were substantially different than E-435. They dealt with ethics rules that attempted to create new procedural requirements rather than focusing on attorneys' ethical conduct.

Our research produces no case from a sister state's highest court and only one case from a federal court finding, despite § 530B, a state ethics rule applicable.[32] In United States v. Colorado Supreme Court,[33] the Tenth Circuit faced the

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question of whether Colorado Rules of Professional Conduct 3.8(f), which placed restrictions on prosecutors subpoenaing attorneys to give information about a past or present client, applied to federal prosecutors under § 530B. In short, the case turned on " whether the version of Rule 3.8 before [the court was] one of those normative legal standards that guides the conduct of an attorney." [34] This determination, in the Tenth Circuit's estimation, required the review of three factors: (1) " a rule of professional conduct would bar conduct recognized by consensus within the profession as inappropriate" ; (2) " a rule of professional conduct is like a commandment dealing with morals and principles" and, to this end, " can often be quite vague in its nature, while by contrast the procedural or substantive law, the purposes of which are to direct a cause of action through the courts, cannot afford such vagueness" ; and (3) " a rule of ethics is directed at the attorney herself." [35] Applying these factors to Colorado's Rule 3.8(f), the court found it was clearly a rule of ethics, not seeking to abrogate federal substantive or procedural law and, as a result, applied to federal prosecutors through § 530B.[36]

The Tenth Circuit's reasoning is illuminating and persuasive for our review of E-435 in light of § 530B's language. We believe E-435 meets the criteria supplied by the Tenth Circuit. Among state bar associations, there is a growing consensus that the use of IAC waivers in plea agreements is unethical behavior. As we write, twelve states have ruled IAC waivers in plea agreements unethical.[37] Two states disagree, although both recognize ethical concerns with the practice.[38] No other states have considered the issue. The American Bar Association has issued a resolution declaring its opposition to IAC waivers; [39] and the National Association of Criminal Defense Lawyers has issued a formal opinion declaring it unethical for defense lawyers to participate in such plea agreements.[40]

Second, E-435 is written in commandment form. The prohibition on use of IAC waivers is unequivocal. The Tenth Circuit noted ethics rules are often drafted in vague form in order to be broad enough to cover the various aspects of lawyer conduct. While E-435 is perhaps not as vague as other ethics rules, we do not find this dispositive. We will not hold it against E-435 that its focus is on a specific form of attorney conduct.

Finally, E-435 is narrowly tailored to address only attorney conduct. As the Tenth Circuit highlighted, " when a rule of

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professional conduct is violated, members of the profession would agree that the violating attorney ought to be held personally accountable; whereas[,] when a procedural or substantive rule is violated, any negative effect would be directed primarily at the progress of the claim itself." [41] The United States may argue that E-435 affects the progress of the conviction but we disagree. A waiver of IAC is the right of the defendant, and nothing in E-435 limits the defendant's freedom of choice or control over his defense.

In our view, E-435 survives scrutiny under § 530B and the Supremacy Clause because it is simply an ethical rule and does not affect federal substantive, procedural, or evidentiary law.[42] There is no subterfuge in E-435. It is not a procedural or substantive rule disguised as an ethics rule. E-435 also survives because, as we mention below, there is no contrary federal law.

2. The United States' Supremacy Clause Challenge Fails Because There is no Federal Law Contrary to E-435.

To the extent the United States' argument can be characterized as asserting federal circuit case law binds this Court's interpretation of § 530B and its associated regulations or determination of the ethical validity of IAC waivers, it is meritless. Admittedly, state courts are charged " with a coordinate responsibility to enforce [federal] law according to their regular modes of procedure." [43] But this does not mean the Supremacy Clause mandates our interpretation of federal law must dovetail with that of federal courts, whether it is unanimous or otherwise.[44]

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State courts and federal courts exercise concurrent jurisdiction, and we are free to disagree. Of course, the approach taken by federal courts may be viewed as persuasive but it is not binding. Moreover, a fair amount of the case law cited by the United States was dated before the enactment of § 530B, so even if we were bound by federal interpretation, the cited cases would offer little help in light of more recent developments.[45]

We must admit it seems E-435, on its face, presents complicated Supremacy Clause concerns with regard to defense counsel. Under Padilla v. Kentucky, the Supreme Court reaffirmed that a defendant is entitled to effective assistance of counsel " [b]efore deciding whether to plead guilty" ; [46] and, in Missouri v. Frye, the Court held that a defense attorney " has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused." [47] Surely, the waiver of collateral attack--including IAC claims--in exchange for a lesser sentence would be " favorable to the accused." Given precedent, we think the Supreme Court would find as such. While waiving the potential for an IAC claim does not carry with it the severe ramifications of deportation, it may foreclose the only remaining challenge to a conviction. Accordingly, it would be " quintessentially the duty of counsel to provide her client with available advice[.]" [48]

If that is true, an attorney subject to E-435 faces a dilemma. On the one hand--the federal hand--the attorney is required to disclose the terms of the offer to the defendant, which would presumably--as we described above--include some form of advice; on the other hand--the state hand--the attorney is prohibited from counseling the client on an IAC waiver. The attorney is left with two utterly unappealing " choices" : act in a manner that may lead to bar discipline, perhaps endangering the attorney's license; or, act in a manner that is explicitly ineffective assistance of counsel, thereby violating the constitutional rights of the client. As a result, compliance with both would be a " physical impossibility" ; [49] and E-435 would be forced to yield because this situation would perhaps alter federal substantive law, contrary

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not only to § 530B, but to constitutional principles as well. Of course, this " physical impossibility" only arises if the prosecution offers a plea agreement with an IAC-waiver provision. We know of no federal law or constitutional principle that mandates defense counsel, of the attorney's own accord, to counsel on every potential plea-agreement term or to offer those terms to the prosecution. As we mention below, there is no constitutional or statutory right to a plea agreement, so there can be no such right to any specific plea-agreement provision.

Moreover, the Sixth Amendment requires more than simple disclosure of plea agreement terms to qualify as " effective." Conflict-free counsel is also demanded.[50] The majority of jurisprudence surrounding counsel operating with a conflict focuses on representing multiple defendants or successive representation. [51] Admittedly, the type of personal conflict presented here with an attorney forced to advise a client on the attorney's own conduct may fall short of the conflict presented with an attorney essentially attempting to serve two masters. That said, a conflict exists; and one can easily foresee a serious impact on a defendant's access to effective assistance. The special nature of an attorney's relationship with a client only emphasizes the impact of this conflict: " There are few of the business relations of life involving a higher trust and confidence than that of attorney and client, or, generally speaking, one more honorably and faithfully discharged; few more anxiously guarded by the law, or governed by sterner principles of morality and justice[.]" [52]

Given the pervasiveness of plea bargaining in our modern criminal justice system, an attorney's personal conflict that affects the terms of the plea agreement could, of course, be highly prejudicial.[53] Indeed, counsel's performance complicated by possible personal conflict may fall " below an objective standard of reasonableness." [54] Perhaps because of the attorney's advice, there may exist a " reasonable probability that[] but for counsel's unprofessional errors[] the result of the proceeding would have been different." [55] The conflict, the extent of which often will not be evident until post-conviction, may have prompted the defendant to take rational action other than entering a plea.[56]

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Ethics opinions and American Bar Association standards " are guides to determining what is reasonable" and " may be valuable measures of the prevailing professional norms of effective representation, especially as these standards have been adapted to deal with the intersection of modern criminal prosecutions[.]" [57] The Supreme Court has yet to answer whether the Sixth Amendment prohibits an attorney from advising a defendant on waiving IAC, but " [t]he weight of prevailing professional norms supports the view" [58] articulated by E-435.

To be blunt, federal law simply does not, at this juncture, operate contrary to E-435; and E-435 appears to supply a needed prophylaxis in a situation that is murky for both defendants and defense counsel. At most, rather than oppose federal law, the application of E-435 highlights the emerging debate over what has been termed " the constitutionalization of the plea-bargaining process" ; [59] perhaps E-435 fills a gap in federal constitutional law, as the Supreme Court contemplated in Nix v. Whiteside.[60]

The United States' Supremacy Clause argument likewise fails because there is no " Law of the United States" mandating the terms a prosecutor must offer in a plea bargain.[61] Generally speaking, the voluminous

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case law cited by the United States focuses on the defendant's right to waive an IAC claim when entering into a plea agreement. The prosecutor's obligation in the negotiation goes unmentioned. We know of no constitutional requirement, outside of simple fair play, applying to the prosecutor's role in the plea bargain process. In fact, it is a matter of prosecutorial grace that a defendant is even offered a plea bargain, terms aside.[62] With no right to be offered a plea agreement, a defendant is not vested with a right requiring the inclusion of any particular terms in a plea agreement.[63]

We are aware that Federal Rules of Criminal Procedure 11(b)(1)(N) requires a trial court " inform the defendant of, and determine that the defendant understands . . . the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence." On its face, this indicates that prosecutors may offer a defendant a plea agreement containing a provision waiving the right to attack the conviction collaterally, ostensibly including on IAC grounds. We emphasize " may" because while Rule 11 contemplates the occurrence of a provision like at issue here, there is no requirement that a plea include it; rather, Rule 11 operates as a safeguard for the defendant in the case a prosecutor decides to offer the provision. This lack of directive for a prosecutor makes sense in the scheme of plea bargaining because the United States desires--even needs--the ability to use its bargaining chips in whatever manner reaches a just result for the government, the defendant, and the victim.[64]

On the other hand, this lack of directive effectively eliminates the United States' Supremacy Clause argument.[65] E-435

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prohibits prosecutors from offering an IAC-waiver provision, which incidentally eliminates the ethical and constitutional quagmire discussed above. Because there is no federal law or constitutional principle contrary to E-435's proclamation, we are unable to discern how the Supremacy Clause prohibits this Court from fulfilling its obligation to embrace E-435 if its declaration comports with our Rules of Professional Conduct. And, again, the case law cited by the United States fails to address the duties of the prosecutor, so we fail to see how E-435 would alter federal substantive law with regard to prosecutors.

Given the background and context surrounding § 530B's enactment, it seems clear this is not the situation Congress was attempting to avoid; instead, it makes more sense that E-435's current operation was what Congress sought. Because E-435 does not operate contrary to existing federal law, the United States' Supremacy Clause challenge fails.

B. E-435 Correctly Articulates the Ethical Concerns Associated with Allowing IAC Waivers in Plea Agreements.

Having found E-435 is not precluded by the Supremacy Clause, we now turn to its merits. As we mentioned previously, E-435 does not express a novel position. E-435 aligns with the vast majority of state ethics decisions, and the two divergent states are not as differing in their views as the United States attempts to argue.[66] The soundness of E-435's reasoning aside, as former Justice Robert Jackson famously remarked, " the mere fact that a path is a beaten one is a persuasive reason for following it." [67] We choose the beaten path today.

1. Counseling a Defendant on an IAC Waiver Presents Both an Unwaivable Conflict of Interest and Concerns With Limiting Malpractice Liability.

a. Conflict of interest.

The United States challenges E-435's proscription of defense counsel's providing advice on IAC waivers in plea agreements. The United States' arguments are numerous but lacking. Primarily, the United States argues any personal conflict posed by the presence of an IAC waiver provision ordinarily will not propose a " significant risk" because of the attorney's concomitant duty to advocate zealously for the client; E-435 presents an improper presumption that attorneys provide ineffective assistance; collateral attack is still available to the defendant; and an IAC waiver is not analogous to limiting malpractice liability. Additionally, the

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United States believes whether a conflict exists should be decided on a case-by-case basis with the attorney making that determination.

We begin our analysis with a simple observation about the nature of our Rules of Professional Conduct. Merely because a practice, arguably unethical in nature, does not arise in every client's representation does not mean an ethical rule is not needed. Ethical rules are designed to eliminate the possibility of an ethical violation, no matter how unlikely the targeted conduct may be. Simply put, it is not sufficient to say, as the United States attempts to argue, that " ordinarily" an attorney's personal interest will not create a significant risk that a client's representation will be materially limited. This leaves open the possibility that ethical violations may occur and clients' interests may be compromised. Instead of reactive, our ethics rules are intended to be proactive and operate preventively.

In that vein, SCR 3.130-1.7 deals with concurrent conflicts of interest, attempting to prevent situations from arising where there is a " substantial risk" representation of the client will be " materially limited" because of the lawyer's " personal interest." The goal of SCR 3.130-1.7 is to lessen the possibility of a " lawyer's own interests . . . hav[ing] an adverse effect on [the] representation of a client." [68] When defense counsel is forced, through the introduction of an IAC waiver in a plea agreement, to advise a client on the attorney's own conduct, a personal interest certainly exists. An IAC claim is time consuming for an attorney,[69] may tarnish the attorney's professional reputation, may subject the attorney to discipline by the bar or courts, and may even have serious financial consequences for the attorney's practice.[70] In fact, SCR 3.130-1.7 Cmt. 10 contemplates just such a situation: " [I]f the probity of a lawyer's own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice." [71] Providing advice on whether it is appropriate to waive collateral attack plainly involves, at the very least, an internal review of the probity of the attorney's own conduct.

Admittedly, SCR 3.130-1.7 contemplates that a conflict may be waivable by the client if various requirements are met: (1) " the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client" ; (2) " the representation is not prohibited by law" ; (3) " the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal" ; and

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(4) " each affected client gives informed consent, confirmed in writing." [72]

This conflict is unwaivable, however, because the conflict of interest is not local; that is, the conflict is not limited to the single attorney representing the defendant. SCR 3.130-1.7 allows for independent counsel to step in when a conflict of interest is present. This procedure attempts to alleviate the impact of the conflict because, presumably, the independent counsel will not share the conflict. The United States concedes that an IAC claim challenging the knowingness or voluntariness of the plea entry would be allowed to proceed, notwithstanding the presence of a waiver provision.[73] Ostensibly, independent counsel would provide advice for the defendant on the IAC waiver and, in doing so, would necessarily discuss independent counsel's own performance. A defendant, in theory, could then later bring an IAC claim attacking the entry of the plea because the independent counsel was ineffective. The conflict persists. Independent counsel does not alleviate its pervasiveness.[74] Moreover, as we will explain below, there is psychological evidence indicating that individuals are subject to " biases" that make difficult, in a situation such as presented here, effectively determining whether competent and diligent representation is possible.

The United States next tries to claim that E-435 operates on a presumption that attorneys provide ineffective assistance. This argument is meritless on several grounds. We have the utmost confidence in the ethical conduct of the members of the Kentucky bar. That confidence, however, does not preclude the need for ethics rules to guide them.

We do not dispute that the Strickland analysis applies to plea bargaining. And, furthermore, we concede that Strickland calls for a presumption of effective assistance. But arguing E-435 presumes ineffective assistance is misguided. The Supreme Court has acknowledged the " murk[y] pre-trial context" where the " likelihood and dimensions of nascent conflicts of interest are notoriously hard to predict" and " rare [is the] attorney who will be fortunate enough to learn the entire truth from [her] own client, much less be fully apprised before trial of what each of the Government's witnesses will say on

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the stand." [75] No presumption of ineffectiveness is required to acknowledge the " imponderables" [76] lurking during plea bargaining. E-435 simply attempts to provide a clear understanding of appropriate conduct in an often cloudy situation. In turn, the interests of both the defendant and the overall criminal justice system are protected.

In highlighting the lack of a presumption of ineffectiveness, we cannot emphasize enough the forward-looking purpose of our ethics rules. Again, we do not seek to be merely reactionary in our duty to regulate the legal profession. To this end, a conflict exists when there is a " substantial risk" of negatively impacting the client's representation. This is true whether or not the " feared eventuality ever materializes." [77] This admittedly differs somewhat from the Strickland standard. But we see no reason why this indicates a presumption of ineffectiveness; rather, our regulation in this area indicates our keen awareness of the potential for confusion for the effective and ineffective lawyer alike.

Moreover, psychological studies have " uncovered psychological biases that make it extremely difficult for professionals, even those who are acting in good faith and whose only limitation is unconscious, to appreciate the deleterious consequences of conflicts of interest." [78] Sure, the " venal lawyer may, from time to time, intentionally seek to obscure evidence of a conflict of interest, or the harmful effects that a conflict had during representation" ; but " psychological research demonstrates that most lawyers--even those who are acting with the best intentions--are unable consciously to identify many conflicts that exist or to appreciate the corrosive effects that such conflicts may have on decision[-]making." [79]

Empirical data suggests it unwise to force an attorney to determine whether her own provided assistance was effective or not.[80] Recently, the field of behavioral economics has been applied to ethical decision-making. This body of research has fostered what is known as " bounded ethicality," [81] essentially meaning humans are " limited during the process of making ethical decisions[.]" [82]

Conflicts of interest, especially the personal conflict in question, provide an example of the " dual-process model" of decision-making,

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where " the human mind processes self-interest automatically, while decisions about professional responsibility are processed by the controlled mode of analytical thought." [83] The presence of a conflict interest ilustrates the necesity of E-435:

In most instances, automatic and controlled processes work together to make decisions. But when a conflict of interest is present, and self-interest and professional responsibility collide, the decision often results in an automatic preference for self-interest. This results in a critical observation: while the decision-maker will believe that the decision comes from rational deliberation where all competing concerns are considered and weighed, in actuality the automatic bias toward self-interest will often create an error in judgment that favors self-interest, automatically and without conscious awareness. In other words, the decision-maker will rationalize behavior as consistent with ethical norms, even when in actuality the decision preferences self-interest.[84]

As a result, even an attorney acting in good faith, diligently attempting to provide the best advice for a client, is at risk of unconsciously painting an ethical gloss over his or her decision.[85] In fact, " the decision-maker uses rational thought to search for arguments that support an already-made judgment through moral intuition" ; [86] and, furthermore, studies have indicated " people tend to overestimate their ability to act ethically, both prospectively when asked to consider how ethical they will be in the future and in hindsight when asked to evaluate how ethical they have been in the past." [87] Perhaps consistent with intuition, " [r]esearch demonstrates that situations where discretion is permitted, and bright lines do not exist, are where psychological biases that skew judgment are most likely to operate." [88] E-435 is both useful and necessary.

b. Limitation on malpractice liability .

An additional ground on which E-435 rests is SCR 3.130-1.8(h), the prohibition on " mak[ing] an agreement prospectively limiting the lawyer's liability to a client for malpractice[.]" The United States challenges this basis as irrelevant and inapplicable to a waiver of IAC. Of course, we can agree with the United States to the extent that an IAC claim is not a claim for malpractice. But that is where our agreement ends.

The reason advising a client to waive an IAC claim in a plea agreement

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limits an attorney's malpractice liability is indirect, yet straightforward. In Kentucky, to claim malpractice in a criminal case, just the same as a civil case, a defendant must show proximate cause.[89] In this context, proximate cause involves a " but for" determination, i.e., but for the attorney's malfeasance, the client--read: defendant--would not have been convicted.[90] Admittedly, in Kentucky, the viability of a malpractice claim following a guilty plea is in doubt. Saving a lengthy discussion of our malpractice landscape, suffice it to say that without having his conviction overturned, a defendant's attempt at proving proximate cause becomes extraordinarily difficult, virtually impossible.

Plainly then, advising a defendant to waive a potential IAC claim--an acknowledged method of obtaining post-conviction relief--would limit the potential for malpractice liability. An attorney should not be allowed to do indirectly that which the attorney is prohibited from doing directly.

The language of our ethics rules aside, public policy supports our conclusion that advising on an IAC waiver in a plea agreement is prohibited under -1.8(h). Criminal defendants, of course, seldom bring malpractice actions. Instead, the usual course of action is via an action under Kentucky Rules of Criminal Procedure (RCr) 11.42 or, federally speaking, a writ of habeas corpus under 28 U.S.C. § 2255. " [C]riminal defendants should not suffer from lesser protections simply because they usually seek habeas corpus relief rather than malpractice damage[s.]" [91]

For the foregoing reasons, E-435 is appropriate as applied to defense counsel.

2. A Prosecutor Inserting an MC Waiver into a Plea Agreement Induces a Fellow Attorney to Violate the Rules of Professional Conduct.

Finally, the United States challenges E-435's proscription of prosecutors embedding an IAC wavier in a defendant's plea agreement. The United States claims a prosecutor, without knowing of specific ineffective performance by defense counsel,

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cannot knowingly induce a fellow attorney to violate ethical rules. We disagree.

Under our ethical rules, " [i]t is professional misconduct for a lawyer to: . . . knowingly assist or induce another [attorney] to" " violate or attempt to violate the Rules of Professional Conduct[.]" [92] Providing context to the language, knowing is defined as " [h]aving or showing awareness or understanding" ; [93] and induce is roughly defined as to " influence[] or persuade[]." [94] Prosecutors offering plea agreements with IAC waivers surely violate this rule.

Despite any notion of horse trading, plea agreements are often essentially contracts of adhesion. Indeed, in the context of appellate waivers, they have been labeled as such.[95] The plea agreement often comes with a take-it-or-leave-it tone. And defense counsel is forced to deal with the provision if offered. Because the prosecutor is aware of our ethical rules, we see little reason why offering a contract of adhesion that requires a fellow attorney to perform unethically in order to comply with other ethical or constitutional obligations would not be " influencing or persuading" a fellow attorney to violate our ethical rules. Contrary to the United States' assertion, it is not necessary that the prosecutor know defense counsel has been ineffective in order to satisfy the rule. Instead, the plain language of the rule indicates that what is required is for a prosecutor to understand his conduct will result in a fellow attorney violating our ethical rules.

E-435 additionally found the United States plea-bargaining practice violated -3.8 of our ethical rules. As a result of their weighty role in our justice system, -3.8 places special responsibilities on prosecutors. E-435 holds the insertion of IAC waivers in plea agreements violates the " spirit" of -3.8 and prosecutors disregard their role as a " minister of justice" when using such waivers. In truth, prosecutors are expected to be more than " simply . . . an advocate." [96] Demanding a defendant waive a potential IAC claim--or, worse, all collateral attack--may provide finality but at too high of a cost. A defendant's conviction is essentially unappealable as a result of the waiver in question. A prosecutor is charged with " see[ing] that the defendant is accorded procedural justice," [97] and we simply do not believe the use of IAC waivers lives up to that lofty expectation.

Accordingly, we affirm E-435 with respect to prosecutors.

III. CONCLUSION.

We are duty-bound to regulate the legal profession within our borders. Today, we are proactive in that role. Attorneys practicing in this Commonwealth, whether state or federal, must comply with our ethics rules. Accordingly, either defense counsel or prosecutors inserting into plea agreements waivers of collateral attack,

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including IAC, violates our Rules of Professional Conduct.

All sitting. All concur.


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