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25 B&B; • 9.14 C O L U M N S THE KENTUCKY SUPREME COURT UPHOLDS E-435 AS LAW (U.S., ex rel. U.S. Attorneys ex rel. Eastern, Western Districts v. Kentucky Bar Association No. 2013-SC-000270 (Aug. 21, 2014)) In the exercise of its authority to regulate the practice of law and the legal profession in the Commonwealth, the Kentucky Supreme Court has delegated to the Kentucky Bar Association (KBA) the au- thority to issue opinions on the ethical propriety of lawyer conduct. See Kentucky Supreme Court Rule (SCR) 3.530. In addition to pro- viding a hotline service to Kentucky lawyers, the KBA Ethics Com- mittee drafts and submits formal ethics opinions to the Board of Governors concerning the application of Kentucky's Rules of Profes- sional Conduct (KRPC), found at SCR 3.130, to lawyer conduct. If the board approves an ethics opinion by a three-fourths vote, the opinion is published in the Bench & Bar. Anyone "aggrieved or af- fected" by such an opinion may challenge it within 30 days of the end of the month of publication. If there is no challenge, the opin- ion becomes official and is posted on the KBA website. Even so, published ethics opinions are advisory only and do not have the force and effect of law. In 2013, the KBA published Ethics Opinion E-435 in the March is- sue of the Bench & Bar. E-435 advised that Kentucky's professional responsibility rules prohibited a criminal defense attorney from counseling a client concerning a waiver of future claims of ineffec- tive assistance of counsel (IAC) contained in a plea agreement of- fered by a prosecutor. In addition, E-435 advised that the KRPC prohibited a prosecutor from making a plea offer requiring a waiver of IAC claims. The U.S. Attorneys for both Eastern and Western Districts of Ken- tucky filed a formal challenge to E-435 and the issues were briefed. Because of the fundamental import of the issues, amicus briefs were filed on behalf of entities such as the Innocence Network and the National Association of Criminal Defense Lawyers. In Septem- ber of 2013, the Kentucky Supreme Court heard oral argument on the matter. On August 21 of this year, the Court unanimously held that E-435 correctly applies Kentucky's professional responsibility rules. Ken- tucky ethics rules are derived from, but not identical to, the ABA Model Rules of Professional Conduct (Model Rules). Forty-nine of the 50 states and the District of Columbia have ethics rules based on the Model Rules. Therefore, the Court's decision likely will influ- ence ethics decisions nationwide on the ethical issue of plea agree- ments that require a waiver of IAC claims. An important aspect of the Court's opinion is its clarification that Kentucky and other states have the right to regulate attorney con- duct, and that E-435 is within that right. After concluding that E-435 does not improperly venture into federal waters, the Kentucky Supreme Court turned to the substance of E-435, the ethical pro- priety of lawyers working in an environment in which plea agree- ments require waiver of IAC claims. The Kentucky Supreme Court observed that most criminal cases are negotiated to conclusion by plea agreements between prosecutor and defense counsel; so no trial occurs. In an effort to finalize criminal cases, prosecutors often propose plea agreements containing waivers of future appeals and other matters. In recent times, prosecu- tors often have made plea deals which are dependent on defendants waiving the right to claim IAC in a later collateral attack on the plea. T he Court agreed with E-435's conclusion that a lawyer cannot ad- vise a criminal defendant regarding a plea offer which requires a waiver of IAC claims. E-435 stated that Rule 1.7 of the KRPC pro- h ibits defense counsel from advising a client whether to accept or reject a plea offer containing an IAC because such counsel would have a non-waivable conflict of interest. E-435 advised that such a situation would present a "significant risk" that defense counsel's representation of the defendant client would be "materially limit- ed" and thus, the lawyer would have a conflict of interest. In addi- tion, the lawyer as defense counsel could not offer advice on whether he/she reasonably believed he/she could render compe- tent and diligent representation, so the lawyer could not ask the client to consent to the conflict. E-435 also noted that Rule 1.8(h) was relevant by analogy in that it prohibited a lawyer from making an agreement with a client to limit liability prospectively unless the client is independently represented. The Kentucky Supreme Court agreed with E-435, concluding that Rule 1.7 prohibited defense counsel's representation on conflict of interest grounds. The Court also acknowledged the relevance of Rule 1.8(h), stating, "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)." The Court also agreed with E-435's advice that the KRPC prohibit a prosecutor from offering a plea agreement which requires a defen- dant to waive IAC claims. Rule 8.4 prohibits a lawyer from "know- ingly assist[ing] or induc[ing] another [lawyer]" to "violate or at- tempt to violate the Rules of Professional Conduct." Prosecutors who include IAC waivers in plea offers induce defense counsel to violate 1.7, the rule regarding conflicts of interest, and therefore, are prohibited by 8.4. KBA ethics opinions are not binding upon members of the bar, and are advisory only. However, by affirming E-435 in its entirety and adopting its substance, the Supreme Court has given the opinion the force of law. Thus, the substance of E-435 is binding upon criminal defense practitioners and prosecutors who practice in the courts of Kentucky. E-435 can be found on the KBA website at http://kybar.org/docu- ments/ethics_opinions/kba_e-435.pdf.