Federal Prosecutors Battle Over Criminal Defense and Prosecution Ethics in Kentucky – But Why?

Is the U.S. Department of Justice picking an unnecessary fight about legal ethics?

This summer’s big criminal justice ethics issue pits the United States of America against the Kentucky Bar Association, whose Board of Governors issued an opinion on how the state’s ethics rules apply to criminal defense lawyers and prosecutors. Kentucky is unusual in that its Supreme Court allows “[a]ny person or entity aggrieved or affected by a formal opinion of the Board” to obtain state Supreme Court review of the bar’s opinion. The United States, acting through the two U.S. Attorneys of the state, has asked the Kentucky Supreme Court to review the opinion of the state bar.

I wonder why the government has standing to bring the case.  No one seems to have noticed, but the Kentucky Supreme Court’s interpretation of the state’s ethics rules would not have the force of law in federal court.  So even if the bar’s opinion has some force of law in state court proceedings, it is not binding as far as federal prosecutors are concerned.  Are federal prosecutors nevertheless “aggrieved or affected”?

Before getting to the “standing” question, here’s some background: Suppose that a defendant is arrested by the DEA on drug charges and his defense lawyer seeks to negotiate an agreement for the prosecution to drop or reduce some of the charges, or for the prosecution to make a lenient sentencing recommendation, if the defendant pleads guilty.  The plea bargain will be mutually beneficial, because a guilty plea saves the public the expense and burden of a trial.  But the guilty plea does not guarantee finality.  Although there are few grounds for appeal or other post-conviction challenges after a guilty plea, there are some.  A defendant may challenge the legality of the sentence.  If the defendant later has second thoughts, he may also seek to vacate the guilty plea on the ground that it was not knowing or voluntary or was the product of incompetent legal advice or assistance.  That’s what happened in Padilla v. Kentucky, where defense counsel did not accurately tell the non-citizen client of the immigration consequences of his guilty plea.

The prosecution, seeking to preserve resources further and to achieve greater finality, may require a defendant, as part of the plea agreement, to waive the right to appellate and other post-conviction review.  The prosecution may or may not provide additional leniency in exchange for this waiver.  Most courts honor these waivers unless the defendant can show that the waiver was ineffective because he was coerced into the waiver agreement or given misinformation that led him to accept it.  The principal significance of waiving post-conviction procedures is that the defendant will be forgoing the opportunity to challenge an unlawful or excessive sentence.  However, the defendant will also lose the opportunity to claim that the guilty plea was the product of incompetent representation in violation of the Sixth Amendment right to effective assistance of counsel.  For example, if the defendant pled guilty because his lawyer inaccurately advised him about the consequences or a plea or about the alternatives, the defendant will lose the opportunity to claim that he was denied competent representation as a result.

From a public perspective, these waiver provisions may seem offensive, because there is an interest in affording a constitutional remedy in the cases, however rare, where defendants enter ill-advised guilty pleas.  But for most defendants, giving up the right to bring a Sixth Amendment ineffective assistance of counsel claim is worth the benefit of a lower sentence.  Harsh sentencing, particularly in federal cases, has given prosecutors enormous power to extract waivers of rights in addition to those that are necessarily waived by pleading guilty.

Quite a few bar associations, including the Kentucky Bar, have examined the developing practices and concluded that there is an ethics problem insofar as defendants are being asked to waive the right to competent counsel.  Two problems, actually.

First, there is a problem for defense lawyers: A defense lawyer advising the defendant whether to accept the plea offer has a reputational interest in avoiding a future claim of incompetent representation.  This may lead the lawyer to overvalue the deal.  Whether the risk that the lawyer will give self-interested advice is great enough to trigger the conflict rule in all cases, without regard to the lawyer’s perception of whether a viable ineffective assistance claim might be brought, is subject to debate.  Most bar associations examining the question, including that of Kentucky, say that no defense lawyer can advise on the subject, even with client consent, although two bar associations take a case-by-case approach.  Although an ineffective assistance of counsel claim does not result in civil liability, some of the opinions also find by analogy that the waiver provisions offend the rule against lawyers limiting their malpractice liability.

Second, there is a derivative problem for prosecutors.  Assuming defense counsel will be acting unethically in advising the defendant about the plea offer, may a prosecutor extend an offer that includes a waiver of ineffective assistance of counsel claims?  The Kentucky Bar and some others have concluded that the prosecutor would be violating Rule 8.4(a), which prohibits inducing another to violate an ethics rule.

Enter the United States of America, which has asked the Kentucky Supreme Court to review and vacate the Kentucky state bar’s opinion.  But why?  Under Kentucky’s choice of law rule, the state court interpretations of the state’s ethics rule should not be binding in federal court.  They are, at most, advisory.

In Kentucky, under Rule 8.5(b)(1) a lawyer plays by the rules of the court in which the lawyer appears.  That means that a criminal defense lawyer in a federal criminal case in Kentucky must play by the rules of the federal court. Although the Kentucky federal courts subject lawyers to discipline for violating the professional conduct rules of the Kentucky Supreme Court, the federal courts do not have to interpret the rules in precisely the same way as the state court.  Kentucky’s federal courts evidently have permitted waivers of ineffective assistance of counsel claims, and implicitly the federal courts perceive no conflict of interest or other impropriety when prosecutors request these waivers and defense lawyers advise their clients about them.  If in fact the conduct is considered permissible by the federal courts under their interpretation of the professional conduct rules, then lawyers who negotiate for these waivers in federal criminal cases are complying with the rules of the applicable jurisdiction.

The McDade Amendment adds a wrinkle.  This is a federal law requiring federal prosecutors to comply with the professional conduct rules of the states in which they appear.  Arguably, federal prosecutors have to comply with the state rules as interpreted at the state level.  It’s not clear that the McDade Amendment means that, but even assuming it does, that’s not a problem here.  The Kentucky bar has said that under Rule 8.4(a), a prosecutor cannot extend a plea offer that would be unethical for defense counsel to advise the defendant about.  But this has no significance for federal prosecutors unless the Kentucky federal courts first agree that defense lawyers can’t give advice about waiving the right to bring an ineffective assistance of counsel claim.  If the federal courts decide that these waiver provisions create no impediment for criminal defense lawyers, then Rule 8.4(a) would not preclude federal prosecutors from including these provisions in their plea offers.

Now perhaps this is all just academic.  If federal prosecutors lack standing to seek review of the bar’s opinion, perhaps they will find a sympathetic state prosecutor to seek review.  But that may not be ideal from federal prosecutors’ perspective, since it is not clear that state prosecutors actually extract waivers of ineffective assistance claims or want to be able to do so.

One other question of note: Federal prosecutors sometimes argue on federal preemption or separation-of-powers grounds that state ethics rules do not apply to them.  By seeking judicial review of a state bar ethics opinion, on the premise that federal prosecutors are “aggrieved or affected,” is the Department of Justice implicitly conceding that state ethics rules, as interpreted by state authorities, apply to them?  Or can they have it both ways?

Bruce A. Green,

Director, Louis Stein Center for Law and Ethics

Fordham University School of Law

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