Kentucky Supreme Court discusses Plea Bargain system, and acknowledges that attorneys cannot ethically waive their (11.42) liability to their client in a Plea Bargain.

 

Aug. 21, 2014

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2013-SC-000270-KB.PDF

 

TO BE PUBLISHED

 

UNITED STATES OF AMERICA,

BY AND THROUGH THE UNITED STATES

ATTORNEYS FOR THE EASTERN AND

WESTERN DISTRICTS OF KENTUCKY MOVANT

 

V. IN SUPREME COURT

 

KENTUCKY BAR ASSOCIATION RESPONDENT

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

AFFIRMING KBA ETHICS OPINION E-435

 

“Ours is for the most part a system of pleas, not a system of trials[.]” 1 is the Plea bargaining is “not some adjuncto the criminal justice system; it 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 that the use of IAC waivers in plea bargain agreements (1) creates a non-waivable 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.

 

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