« "Let's reserve costly prison beds for dangerous offenders" | Main | Pennsylvania Superior Court upholds (most of) sentence requiring former state Supreme Court Justice to write apology »

August 21, 2014

Kentucky Supreme Court affirms that ineffective assistance of counsel waivers in plea agreements are ehtically suspect

Via an e-mail from the National Association of Criminal Defense Lawyer, I just learned of a notable new opinion from the Kentucky Supreme Court.  Here is an excerpt from the NACDL's account of the ruling (as well as a link to the ruling):

In a landmark decision handed down today in U.S. v. Kentucky Bar Assn., the Supreme Court of Kentucky unanimously rejected a challenge by the federal government, by and through its federal prosecutors in that jurisdiction, to Kentucky Bar Association Ethics Opinion E-435, which states that the use of ineffective assistance of counsel (IAC) waivers in plea agreements violates Kentucky's Rules of Professional Conduct.

According to the court, this means that whether in state or federal court in Kentucky, "either defense counsel or prosecutors inserting into plea agreement waivers of collateral attack, including IAC, violates our Rules of Professional Conduct." The Court held that "the use of IAC waivers in plea 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, (3) induces, by the prosecutor's insertion of the waiver into plea agreements, an ethical breach by defense counsel." The decision also relies on the McDade-Murtha Amendment (28 USC ยง 530B), which requires that federal prosecutors abide by state ethics laws. The National Association of Criminal Defense Lawyers (NACDL) advocated for passage of this important check on prosecutorial misconduct and has worked to defeat efforts to repeal or dilute the measure.

The Kentucky Bar Association adopted Ethics Opinion E-435 in late 2012, shortly after NACDL adopted Formal Opinion 12-02, cited in today's Kentucky Supreme Court decision. The NACDL opinion determined that it is not ethical for a criminal defense lawyer to participate in a plea agreement that bars collateral attacks in the absence of an express exclusion for prospective claims based on ineffective assistance of counsel. The NACDL opinion further states that prosecutors may not ethically propose or require such a waiver. It also describes an attorney's duty when the government attempts to extract such a waiver.

NACDL filed an important amicus curiae brief joined by numerous legal ethics professors and practitioners in U.S. v. Kentucky Bar Assn. and was also afforded the opportunity to present oral argument before the Supreme Court of Kentucky in this matter....

A link to the Supreme Court of Kentucky's decision in U.S. v. Kentucky Bar Association is available here.

A link to NACDL's Formal Opinion 12-02 is available here.

A link to NACDL's joint amicus curiae brief in U.S. v. Kentucky Bar Association is available here

August 21, 2014 at 04:11 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Kentucky Supreme Court affirms that ineffective assistance of counsel waivers in plea agreements are ehtically suspect:


Superb opinion. Kudos to the Kentucky Supreme Court!

Posted by: Michael R Levine | Aug 21, 2014 5:12:17 PM

This Kentucky Supreme Court decision makes infinite good sense to me. Prosecutors have overwhelming resource and power advantages over defendants and their counsel. 97% of all Federal criminal cases are resolved by guilty pleas. It should be enough that the Government's form plea agreements contain appeal waivers. Yet, guilty pleas should always be subject to collateral attack via a Motion for Habeas Corpus on the ground that defense counsel was ineffective in providing proper legal advice to the defendant.

I have worked with habeas corpus counsel for the past 4 1/2 years to help secure justice on for a medical doctor, charged with writing prescriptions for narcotics without a medical necessity. Upon the advice of novice (first time) defense counsel (just 3 years out of law school), Dr. Sawaf turned down the Government's 41-month long plea offer, without being told by defense counsel that if he went to trial and lost, his U.S.Sentencing Guidelines would be 235 to 293 months, with a 240 month statutory cap. Following trial, the convicted defendant was sentenced in 2001 to the statutory maximum sentence of 20 years under 21 U.S. Code section 841(b)(1)(a). The defendant, now age 73, served 13 years of that sentence, before the Sixth Circuit Court of Appeals reversed the District Court's denial of his Motion for Habeas Corpus per 28 U.S.C. section 2255. When he receives his habeas corpus remedy soon (the Mandate issues on Friday), he should end up re-sentenced to 41 months and be released from prison. See, "United States v. Sawaf", 2013 U.S. District LEXIS 43296 (E.D.Ky. March 27, 2013), reversed and remanded, 2014 U.S. App. LEXIS 12693 (6th Cir. June 30, 2014). For our country's criminal justice system to function fairly and properly, every defendant should retain the right to seek habeas corpus, if he can show that his attorney was ineffective as counsel.

Posted by: Jim Gormley | Aug 21, 2014 6:05:16 PM

A case from the Eleventh Circuit illustrates why it is important for criminal defendants to always retain a right to seek Habeas Corpus, based upon ineffective assistance of counsel, relating to guilty pleas. Circa 2000, defendant Yuby Ramirez was the girl friend of a major cocaine Drug Lord, who had been targeted by law enforcement. He and his criminal partner decided to kill some potential witnesses against them in an attempt to avoid being indicted. They imported Colunbian hit men to the U.S., who spent the night in Ramirez's Miami home and she let them store their weapons there. Three witnesses were actually killed. Ms. Ramirez was indicted for conspiracy to intimidate a Federal witness. Her defense lawyer advised her to turn down the Government's 10-year plea offer, which he thought was her maximum sentence exposure. After being convicted at trial, Ramirez received a life sentence. Her defense counsel had overlooked the life sentencing enhancement applicable to her case, for intimidating a witness, resulting in the death of the witness. But for the availability of habeas corpus relief, Ramirez would have spent the rest of her life in a Federal prison, instead of just 10 years. The appeal of the District Court's denial of her Motion for Habeas Corpus was pending at the Eleventh Circuit when the U.S. Supreme Court decided "Lafler v. Cooper" and "Missouri v. Frye" in March 2012. The Eleventh Circuit remanded the case to the District Court, with directions to vacate her conviction. "Yuby Ramirez v. United States", Appeal No. 1-10653-DD (11th Cir. May 3, 2012)(unpublished Order). The District Court vacated her convictions and ordered the Government to re-offer the original 10-year plea deal, which Ramirez accepted. "United States v. Yuby Ramirez", Case No. 04-22395-CV-Lenard-Garber (S.D.Fla. May 4,2012)(Docket No. 1332 unpublished order). Because Ramirez had already served 11 years in Federal prison, she was immediately released and deported to South America. Criminal defendants should not suffer life sentences just because heir defense lawyer made a mistake in advising them to reject the Government's guilty plea offer.

Posted by: Jim Gormley | Aug 21, 2014 7:06:01 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB