Limits to the Class Action Device: The Kentucky Wages and Hours Act Does Not Permit a Class Action

Article | 103 KY. L. J. ONLINE 2 | July 17, 2015

Jeffrey A. Savarise and Timothy J. Weatherholt[1]

I. Introduction

Class action claims for unpaid wages have become pervasive in both state and federal courts. Plaintiff employment attorneys and the ever burgeoning class action law firms are filing these cases throughout the country, including in Kentucky. A wage and hour class action can be extremely lucrative from a financial standpoint for plaintiffs’ counsel. Many of these classes include hundreds, if not thousands, of class members. Assuming a one-third contingency fee, a plaintiff counsel who settles a typical wage and hour class action could easily earn a seven-figure fee.The federal wage and hour law, the Fair Labor Standards Act (“FLSA”), provides for a class mechanism for wage claims – collective actions. However, individuals must “opt in” to the “class,” as opposed to the more traditional “opt out” class actions. Under 29 U.S.C. § 216(b) of the FLSA, a member of the class who is not named in the complaint is not a party unless he or she affirmatively “opts in” by filing a written consent-to-join with the court.[2] This has the obvious effect of limiting the recovery pool. Recent statistics show only around fifteen percent of litigants in federal collective actions actually “opt in” to the litigation.[3] The incentive for a plaintiff counsel to proceed in a state law class action – as opposed to a collective action under the federal law that requires litigants to affirmatively “opt in” to the case – is extremely high.Fortunately, for many members of the plaintiffs’ bar who practice wage and hour cases, most states supplement the basic protections of the FLSA with their own wage and hour laws. Some, but not all of these state laws, permit the class action device. For instance, several state wage and hour statutes explicitly permit an action to be brought on behalf of others.[4] The wage and hour statutes in other states provide more general language that does not authorize, nor preclude, the use of the class action device.[5] In this situation, state courts will typically approve of the class action device.[6] In those cases, plaintiffs are basically limited to the remedy provided under the FLSA.While this issue is settled in practically every state, either by clear statutory text or case law, the question of whether a Kentucky plaintiff can pursue a class action under Kentucky’s Wages and Hours Act (the “Kentucky Act”) remains unresolved.[7] The Kentucky Act is unique in that, on its face, for the reasons explained below, it does not appear to permit class actions. Yet, until recently, courts have taken no issue with plaintiffs pursuing class actions under the Kentucky Act.[8] In fact, it appears no employer/defendant had ever raised the issue prior to the authors of this note. This issue has serious potential consequences, not only due to the differences between “opt in” and “opt out” actions, but also because the statute of limitations under the Kentucky Act is five years[9] and the statute of limitations under the FLSA is only two years for non-willful violations.[10]This note argues Kentucky courts should adhere to the plain language and other extrinsic sources that support the position that class actions are not viable under the Kentucky Act. In Part II, this note will discuss the brief history of KRS 337.385 of the Kentucky Act and a few of the relevant cases discussing how wage and hour claims may proceed. The note will then review the Kentucky Act’s plain language and compare Kentucky’s statutory language to language in similar, but distinct statutes – the FLSA and Kentucky’s statutes prohibiting wage discrimination based on sex. The note will then discuss the opposing view for why the Kentucky Act might not bar class actions. In Part III, this note will discuss the recent decision by the Kentucky Court of Appeals in which it stated, albeit in dicta, the Kentucky Act precludes class actions. In Part IV, the note will discuss why the Court of Appeals was correct, but why a more comprehensive opinion is needed. In Part V, the note will highlight another opinion which provides a roadmap for how this dispute can be resolved. The note will conclude by discussing how the Kentucky General Assembly, not the courts, provides the best opportunity to enable the plaintiffs’ bar to bring class actions under the Kentucky Act.

II. The Kentucky Act: Its History and Text, As Well As Its Similarities and Differences as Compared to Like Statutes

A.The Language of KRS 337.385 Has Remained Remarkably Consistent Over Time

KRS 337.385(1) was first adopted in 1974 and has changed remarkably little over time. The 1974 version provided as follows:

(1) Any employer who pays any employee less than wages and overtime compensation to which such employee is entitled under or by virtue of this Act shall be liable to such employee affected for the full amount of such wages and overtime compensation, less any amount actually paid to such employee by the employer, for an additional equal amount as liquidated damages, and for costs and such reasonable attorney’s fees as may be allowed by the court. Provided, that if, in any action commenced to recover such unpaid wages or liquidated damages, the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of this Act, the court may, in its sound discretion, award no liquidated damages, or award any amount thereof not to exceed the amount specified in this section. Any agreement between such employee and the employer to work for less than the applicable wage rate shall be no defense to such action. Such action may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves.[11]

In 1978, KRS 337.385(1) was revised to read:

(1) Any employer who pays any employee less than wages and overtime compensation to which such employee is entitled under or by virtue of KRS 337.020 to [337.275 and] 337.285 shall be liable to such employee affected for the full amount of such wages and overtime compensation, less any amount actually paid to such employee by the employer, for an additional equal amount as liquidated damages, and for costs and such reasonable attorney’s fees as may be allowed by the court. Provided, that if, in any action commenced to recover such unpaid wages or liquidated damages, the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of KRS 337.020 to [337.275 and] 337.385, the court may, in its sound discretion, award no liquidated damages, or award any amount thereof not to exceed the amount specified in this section. Any agreement between such employee and the employer to work for less than the applicable wage rate shall be no defense to such action. Such action may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves.[12]

In 2010, the language was modified to be gender neutral:

(1) Any employer who pays any employee less than wages and overtime compensation to which such employee is entitled under or by virtue of KRS 337.020 to 337.285 shall be liable to such employee affected for the full amount of such wages and overtime compensation, less any amount actually paid to such employee by the employer, for an additional equal amount as liquidated damages, and for costs and such reasonable attorney’s fees as may be allowed by the court. Provided, that if, in any action commenced to recover such unpaid wages or liquidated damages, the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he or she had reasonable grounds for believing that his or her act or omission was not a violation of KRS 337.020 to 337.285, the court may, in its sound discretion, award no liquidated damages, or award any amount thereof not to exceed the amount specified in this section. Any agreement between such employee and the employer to work for less than the applicable wage rate shall be no defense to such action. Such action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves.[13]

Finally, in 2013, KRS 337.385 was again revised, primarily to address forced labor, and subsection (1) was split into two sections:

(1) Except as provided in subsection (3) of this section, any employer who pays any employee less than wages and overtime compensation to which such employee is entitled under or by virtue of KRS 337.020 to 337.285 shall be liable to such employee affected for the full amount of such wages and overtime compensation, less any amount actually paid to such employee by the employer, for an additional equal amount as liquidated damages, and for costs and such reasonable attorney's fees as may be allowed by the court.

(2) If, in any action commenced to recover such unpaid wages or liquidated damages, the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he or she had reasonable grounds for believing that his or her act or omission was not a violation of KRS 337.020 to 337.285, the court may, in its sound discretion, award no liquidated damages, or award any amount thereof not to exceed the amount specified in this section. Any agreement between such employee and the employer to work for less than the applicable wage rate shall be no defense to such action. Such action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves.[14]

Throughout these revisions, the essential substance of the last sentence – which now reads, “[s]uch action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves” – remained the same.Between 1974 and 1986, there were only a few occasions where putative class actions reached the appellate level in published decisions. In Orms v. City of Louisville,[15] the issue on appeal concerned the application of Kentucky’s overtime compensation statute, KRS 337.285, to a City of Louisville policy that required its police officers to report fifteen minutes before they began their daily tour of duty.[16] The police officers sought to recover, in a class action, compensation for this time.[17] The Jefferson Circuit Court entered summary judgment for the City, and the Court of Appeals agreed, finding that the collective bargaining agreement at issue was controlling.[18]In City of Louisville v. Gnagie,[19] the plaintiffs/employers, individually and as representatives of the Louisville Firefighters’ Association, sought compensation in a class action suit against the City, pursuant to KRS 337.285, for their fifteen-minute “roll call” prior to each shift.[20 ]Both the City and the employees moved for summary judgment in Jefferson Circuit Court on the issue of liability.[21] The trial court entered summary judgment for the City, holding that the “roll call” period was de minimis,[22] and therefore, non-compensable, but the Court of Appeals reversed the Jefferson Circuit Court and remanded the case for an evidentiary hearing to resolve perceived factual disputes regarding the nature of the work performed during “roll call” and to determine whether the firefighters were customarily released from duty prior to the end of their shifts to compensate for the “roll call” period.[23] The Kentucky Supreme Court reversed the Court of Appeals and affirmed the trial court.[24]Given the procedural postures of Orms and Gnagie, each presented obvious issues tailor-made for the City of Louisville’s attempt at a swift resolution. While the City could have raised the argument that class actions are not viable under the Kentucky Act, it clearly had even stronger arguments at its disposal. Unfortunately for the advancement of the law, a pair of Kentucky Court of Appeals cases decided around the same time as Orms and Gnagie obviated the need to address the statutory language. Collectively, Early v. Campbell Fiscal Court[25] and Noel v. Season-Sash, Inc.[26] stand for the general proposition that the Kentucky Labor Cabinet had original and exclusive jurisdiction over claims brought for the recovery of minimum wage and overtime payments, i.e., there was no right to an original action in the circuit court.[27] The Supreme Court did not overrule these cases until 20 years later in Parts Depot, Inc. v. Beiswenger.[28] Only then were litigants permitted to pursue their wage claims either at the Kentucky Labor Cabinet or in a circuit court.[29]Subsequent to the Supreme Court’s decision in Parts Depot, plaintiffs have brought class actions under the Kentucky Act in a number of cases.[30] This note contends that they lack the authority to do so, and defense practitioners, and to a lesser extent the courts, have missed the mark (at least, that is, until November 2013)[31] in failing to properly consider the meaning of the statutory language.

B. An Analysis Of The Plain Language Of KRS 337.385

1. How Kentucky Courts Analyze Statutes

The Kentucky Supreme Court has set forth the following rubric for how statutory language should be reviewed:

The seminal duty of a court in construing a statute is to effectuate the intent of the legislature. A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning. Thus, we are “to ascertain the intention of the legislature for words used in enacting statutes rather than surmising what may have been intended but was not expressed.

Thus, if a statute is clear and unambiguous and expresses the legislature’s intent, the statute must be applied as written. And absent an ambiguity, there is no need to resort to the rules of statutory construction in interpreting it. Statutes, of course, must be read as a whole and in context with other parts of the law.[32]

In Revenue Cabinet v. O’Daniel,[33] the Supreme Court similarly noted, ‘“[t]he plain meaning of the statutory language is presumed to be what the legislature intended, and if the meaning is plain, then the court cannot base its interpretation on any other method or source.”’[34] Furthermore, in Lichtenstein v. Barbanel,[35] the Supreme Court remarked, “[i]f the statutory language is ambiguous, we will look to other sources to ascertain the legislature’s meaning, including legislative history.”[36]

2. Is KRS 337.385(1) of The Kentucky Act Ambiguous?

KRS 337.385 now provides that an employee or employees may sue “for and in behalf of himself, herself, or themselves.”[37] On its face, this language permits multiple individuals to pursue their claims in one proceeding, but not in a representative capacity – an employee or employees may sue only “for and in behalf of himself, herself, or themselves.”[38] The pronouns “himself,” “herself,” and “themselves” are reflexive pronouns, which always refer to, and are identical with, the subject of the sentence or clause.The subject of the statutory text at issue is the “one (1) or more employees” who are maintaining an action in court.[39] The pronouns “himself,” “herself,” and “themselves” refer to the “one (1) or more employees” who are maintaining such an action. A grammatical reading of the passage is:

(i) any one employee may maintain an action for and in behalf of himself;

(ii) any one employee may maintain an action for and in behalf of herself; and

(iii) any two or more employees may maintain an action for and in behalf of themselves.

Of course, it is fair to wonder why the General Assembly chose this particular language. After all, the General Assembly could have simply said something akin to “class actions are not permitted under this statute.” The General Assembly’s choice of words makes sense, however, in light of the federal statute on which it was modeled.

C. A Comparison To Like Statutes

1. The FLSA’s Remedy Mechanism

Kentucky courts have recognized the similarities between the remedy mechanism of the Kentucky Act and that of the FLSA.[40] The Kentucky Act’s remedy mechanism is similar to that of the FLSA, but with one major distinction, as noted below:

(Kentucky Act):

“Such action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves.”[41]

(FLSA):

“An action . . . may be maintained against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.”[42]

2. Kentucky’s Wage Discrimination Because Of Sex Statute

In addition to the FLSA inference, there is an infrequently utilized section in KRS Chapter 337 that addresses wage discrimination based on sex.[43] In principal part, the anti-discrimination provision provides, “[n]o employer shall discriminate between employees in the same establishment on the basis of sex, by paying wages to any employee in any occupation in this state at a rate less than the rate at which he or she pays any employee of the opposite sex for comparable work on jobs which have comparable requirements relating to skill, effort and responsibility.”[44] The anti-discrimination provision is enforced by a subsequent provision providing, “[a]ction to recover the liability may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves and other employees similarly situated.”[45]

D. The Opposing View

Perhaps the most potent argument is that the language of the statute does not, in ordinary words, preclude class relief, e.g., “class actions may not be maintained under this section.” In Califano v. Yamasaki,[46] the U.S. Supreme Court considered whether a statute that provided, “[a]ny individual, after any final decision of the Secretary made after a hearing to which he was a party . . . may obtain a review of such decision by a civil action . . . .”[47] The court found the use of the ambiguous phrase “any individual” did not express the clear congressional intent to preclude class actions.[48]Another argument focused on the potential interplay between Kentucky Rule of Civil Procedure Rule (CR) 1 and 23. Rule 1 provides that the civil rules “govern procedure and practice in all actions of a civil nature . . . .”[49] In other words, there is a potential conflict between the judiciary’s adoption of civil rules permitting class actions and the legislature’s enactment of a statute that takes away the right to class actions. A number of other states have similar civil rules yet practically every state legislature, including Kentucky’s, has placed some form of a substantive restriction on the class action device.[50]Finally, the fact that a number of Kentucky courts, primarily Kentucky federal courts, have considered claims under the Act without taking issue with the ability to pursue a class action under the Act lends support, however small, to the position that the Act permits class actions.[51]

III. The Kentucky Court of Appeals Weighs in, Albeit in Dicta

In 2013, the Kentucky Court of Appeals had occasion to consider the argument that the Kentucky Act precludes class actions.[52] It did so in the context of litigation that had spanned fifteen years between Toyota Motor Manufacturing, Inc. (”TMMK”), represented by the authors of this piece,[53] and employees/former employees of its paint and bumper paint departments who claimed they were not compensated for time spent putting on and taking off a paint suit and walking to and from their work processes.[54] The Plaintiffs pursued their case as a class action, and millions of dollars in damages were potentially at issue given that the class could number over 1,000 members of TMMK’s paint and bumper paint departments.[55] This potential exposure only increased in 2007 when the Scott Circuit Court reopened the judicial case that had been final since 2003, in light of Parts Depot.[56]After a lengthy appellate process, the case returned to the Scott Circuit Court.[57] There, TMMK asserted the argument that the Kentucky Act does not provide for class actions, and, after the Scott Circuit Court denied its motion to dismiss on those grounds, re-asserted the argument in opposition to the Plaintiffs’ motion for class certification.[58] Once Plaintiffs’ motion was granted, TMMK was able to avail itself of a recent change in the civil rules that permitted litigants to make an interlocutory appeal of a grant or denial of class certification.[59]The Kentucky Court of Appeals primarily addressed the point that it agreed with TMMK that the Scott Circuit Court should not have reopened the case.[60] In dicta, though, the Court of Appeals stated:

However, were we to reach the merits of this argument, we would agree with TMMK that the text of KRS 337.385(1) provides a clear expression of intent that class actions are not permitted . . . The statute permits more than one person to bring a cause of action under KRS 337.385(1) in the same case, but they may not do so in a representative capacity. Further, the effect of the “for and in behalf of” language is to limit the individuals who may participate in an action under the Act to those who actually bring the action. Thus, even if the trial court had properly reopened the case under CR 60.02(f), KRS 337.385(1) does not permit class actions and the trial court improperly certified a class.[61]

The very next month, the Jefferson Circuit Court likewise found in favor of Humana Inc., also represented by Fisher & Phillips, who argued the same position regarding the statutory language.[62] That opinion, however, is not binding on any other Kentucky court and did not substantively address the arguments outlined above.

IV. The Kentucky Court of Appeals Was Correct, But a More Comprehensive Opinion is Needed

While the opinions of the Court of Appeals and the Jefferson Circuit Court reached the correct result, neither opinion thoroughly reviewed all of the arguments supporting the position that the Kentucky Act does not permit class actions. The most critical argument is, of course, the plain text. None of the readings of KRS 337.385(1) outlined above supports a conclusion that employees may sue for and in behalf of anyone else, that is, for and in behalf of anyone who has not also commenced an “action” to assert his or her own rights under the Act. While more than one person may bring a cause of action under the Kentucky Act, the language of KRS 337.385(1), on its face, bars them from doing so in a representative capacity. Given Kentucky law holding that the plain text controls absent ambiguity, this should resolve the issue.But given the support from extrinsic sources, it makes sense for a court to consider those sources as well. The Kentucky Act’s phrasing negating the class action device makes perfect sense when read in conjunction with the FLSA. Moreover, the Kentucky General Assembly adopted KRS 337.427, a section of the Kentucky Wage Discrimination Because of Sex statute, in 1966, eight years prior to its adoption of KRS 337.385.[63] Thus, it cannot be said the Kentucky General Assembly was unaware of the “for and in behalf of” language when it adopted KRS 337.385(1) in 1974.It is fair to wonder, however, whether the 1974 General Assembly somehow inadvertently omitted the “and other employees similarly situated” language included in the FLSA. Of course, Kentucky has long-recognized the “primary rule of statutory construction that the enumeration of particular things excludes the idea of something else not mentioned.”[64] In Fox v. Grayson,[65] the Kentucky Supreme Court noted, “[w]e cannot dismiss the notable omission of language . . . as a mere accidental oversight. It is well settled law that a court may not add language to the written law to achieve a desired result.”[66] Similarly, in Rue v. Ky. Ret. Sys.,[67] the Kentucky Court of Appeals stated, “[w]e are not free to add words to statutory enactments in order to enlarge their scope beyond that which can be gleaned from a reading of the words used by the legislature.”[68]The Kentucky Supreme Court has a history of adhering to the slight differences in language in related statutes – a point that could easily be highlighted in any opinion on the Kentucky Act. In Kentucky Department of Corrections v. McCullough,[69] the Kentucky Supreme Court considered two different provisions of the Kentucky Civil Rights Act. At issue was the availability of punitive damages, specified in one provision but not the other:

(Kentucky Civil Rights Act – Employment Discrimination):

In the employment discrimination context, permitting recovery for “actual damages sustained.”[70]

(Kentucky Civil Rights Act – Housing Discrimination):

In the housing discrimination context, permitting recovery for “punitive damages.”[71]

When faced with this obvious disparity in language, the Kentucky Supreme Court rejected the Court of Appeals’ “policy-oriented approach,” which allowed for recovery of punitive damages under the employment discrimination remedy provision of KRS 344.[72] Instead, the Court reversed and found, inter alia, that “in construing statutes it must be presumed that the Legislature intended something by what it attempted to do.”[73]A more recent case provides another compelling example of the power of precise statutory language. In Griffin v. Rice,[74] the issue was who would receive the deceased’s estate, his mother or his wife.[75] The answer turned on the Kentucky Supreme Court’s interpretation of KRS 392.090(2), which provided that a spouse who voluntarily leaves the other and “lives in adultery” forfeits his or her right to an interest in the other’s estate of property.[76] The proof at trial showed that the deceased’s wife engaged in one act of sexual intercourse with another man, which happened to be the night prior to the deceased’s death.[77]In concluding that the phrase “lives in adultery” requires proof of more than one sexual act, the Court noted Kentucky’s former fault-based divorce statute contained different phrasing depending upon the party seeking the divorce.[78] According to the prior statute – which while concededly dated and sexist is nevertheless instructive for this limited purpose – a husband or a wife could obtain a divorce on the grounds that the other was “living in adultery with another man or woman,” but, according to another provision, a husband could also obtain a divorce on the grounds of “adultery by the wife.”[79] In finding for the wife, Griffin focused on the difference in language and stated:

Had the General Assembly considered one instance of adultery sufficient to bar a husband or wife from his or her interest in the other spouse’s estate and property, it would have made this clear by employing different wording in the statute, such as “commits adultery” or “engages in adultery.” Another statute, in effect at the same time as the statute at issue, indicates the General Assembly was aware of the import of its phrasing and knew exactly how to distinguish between one adulterous act and multiple acts of adultery. . . . The language chosen by the General Assembly in the contemporaneous divorce statute makes clear the legislature was aware of the significance of its phrasing and was able, had it meant to do so, to employ language that indicated one act of adultery would be sufficient to bar a husband or wife from his or her interest in the other spouse’s estate and property.[80]

Taken together, McCullough and Griffin stand for the proposition that different word choices in closely related statutes must be given effect. The General Assembly clearly understands the import of even slight word changes, and the Supreme Court has read those words literally, regardless of the outcome. In Griffin, that approach arguably had real and negative consequences – rewarding the unfaithful wife at the expense of the deceased’s mother.By contrast, there are no such negative consequences to the General Assembly’s choice to omit the critical and dispositive phrase “and other employees similarly situated.” Any individual who wants to pursue a claim under the Kentucky Act may do so, regardless of whether class actions are permitted. That has been, and will always be, the case. Employees simply will be unable to do so in any type of representative action.In other words, the only individuals truly harmed by this argument are the plaintiffs’ bar. Ultimately, though, the plaintiffs’ bar could have the opportunity to alter this outcome, despite the plain language of the Kentucky Act.

V. The Court of Appeals Provided a Roadmap for How This Issue Should Be Resolved in an Earlier Case

In 2005, the Court of Appeals in City of Somerset v. Bell[81] correctly read a statute as providing for class actions, and later that same year, the General Assembly, disagreeing with that conclusion, amended the statute. In City of Somerset, the Court of Appeals cited a line of precedent spanning more than 70 years which interpreted the statute at issue in that case, KRS 134.590(6), and its predecessor statute, as not allowing for class relief because it provided “[n]o refund shall be made unless application is made in each case within two (2) years from the date payment was made.”[82]City of Somerset noted that line of precedent was called into question due to a 1996 statutory amendment to KRS 134.590(6) which deleted the words “in each case.”[83] This amendment allowed the plaintiff taxpayers to argue the statute now permitted class actions.[84] The Court agreed with the taxpayers, citing Kentucky law providing, “[w]here a statute is amended or re-enacted in different language, it will not be presumed that the difference between the two statutes was due to oversight or inadvertence on the part of the Legislature. On the contrary, it will be presumed that the language was intentionally changed for the purpose of effecting a change in the law itself.”[85] Given this guidance, the court concluded:

Considering the historical significance of that phrase [in each case], beginning in the Swiss Oil case, we must conclude that the intent of the legislature was to amend that portion of the statute limiting refunds for ad valorem taxes to individual claims. Even if the change was unintentional, its effect was to alter key language of a statute, which, for some seventy years before the amendment, had been interpreted by the courts to limit tax refunds to individual claims.[86]

The General Assembly became aware of this result, and, later that very same year (2005), enacted new language to make clear its intent that class actions are not permissible.[87] The statute now reads, “[n]o refund shall be made unless each taxpayer individually applies . . .”[88]City of Somerset provides a model for how statutes should be reviewed. The absence of the phrase “in each case” was critical and dispositive in that case. It would have been more than a little odd for the Court to deny the availability of the class action mechanism to the taxpayers in 2005, given how the statute read at that time. But the General Assembly did not want taxpayers to be able to proceed as a class, so it took away that ability through an amendment to the statute’s text. If the General Assembly believes class actions are appropriate under the Kentucky Act, it will presumably do likewise here, once a Kentucky court definitively decides this issue. Absent that, it would be inappropriate for the judiciary to read into the Kentucky Act what is not there – either by consideration of the plain language or from the context of similar statutes.

[1] Jeff Savarise and Tim Weatherholt are partners in the Louisville office of Fisher & Phillips LLP, a national labor and employment law firm representing employers. Jeff is a 1982 graduate of John Carroll University and a 1985 graduate of the University of Akron School of Law. Tim is a 2001 graduate of Transylvania University and a 2004 graduate of Vanderbilt Law School.[2] Kinney Shoe Corp. v. Vorhes, 564 F.2d 859, 862 (9th Cir. 1977); 29 U.S.C. § 216(b) (2008).[3] See, e.g., Andrew C. Brunsden, Hybrid Class Actions, Dual Certification, and Wage Law Enforcement in the Federal Courts, 29 Berkeley J. Emp. & Lab. L. 269, 292–94 (2008).[4] See, e.g., Alaska Stat. § 23.10.110(b) (2012) (“An action to recover from the employer the wages and damages for which the employer is liable may be maintained in a competent court by an employee personally and for other employees similarly situated, or an employee may individually designate in writing an agent or representative to maintain an action for the employee.”); Haw. Rev. Stat. § 387-12(c) (2008) (“Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of oneself or themselves and other employees similarly situated, or the employee or employees may designate an agent or representative to maintain action for and in behalf of all employees similarly situated.”); N.H. Rev. Stat. Ann. 275:53(1) (2008) (“Action by an employee to recover unpaid wages and/or liquidated damages may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf or himself, or themselves, or such employee or employees may designate an agent or representative to maintain such action.”).[5] See, e.g., Minn. Stat. § 177.27(8) (2006) (“An employee may bring a civil action seeking redress . . . .”).[6] See, e.g., Braun v. Wal-Mart, Inc., No. 19-CO-01-9790, 2003 WL 22990114, at *3 (D. Minn. 2003) (certifying class in connection with working off the clock and through break and meal periods on breach of contract and other theories).[7] The Kentucky Act provides in pertinent part: “Such action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves.” Ky. Rev. Stat. Ann. § 337.385(2) (West Supp. 2014).[8] See. e.g., Whitlock v. FSL Mgt., LLC, No. 3:10CV-00562-JHM, 2012 WL 3274973, at *14 (W.D. Ky. 2012), Hughes, v. UPS Supply Chain Solutions, Inc., Nos. 2012-CA-001353-ME, 2012-CA-001757-ME, 2013 WL 4779746, at *7 (Ky. Ct. App. 2013); England v. Adv. Stores Co., Inc., 263 F.R.D. 423, 458 (W.D. Ky. 2009); Barker v. Family Dollar, Inc., No. 3:10-CV-00170-H, 2012 WL 5305335, at *1 (W.D. Ky. 2012); McCauley v. Family Dollar, Inc., No. 3:10-CV-363-S, 2010 WL 3221880, at *1 (W.D. Ky. 2010).[9] Ky. Rev. Stat. Ann. § 413.120(2) (2006).[10] 29 U.S.C. § 255 (2011).[11] Ky. Rev. Stat. Ann. § 337.385 (1974) (current version at Ky. Rev. Stat. Ann. § 337.385 (West Supp. 2014)).[12] Ky. Rev. Stat. Ann. § 337.385 (1978) (current version at Ky. Rev. Stat. Ann. § 337.385 (West Supp. 2014)).[13] Ky. Rev. Stat. Ann. § 337.385 (2010) (current version at Ky. Rev. Stat. Ann. § 337.385 (West Supp. 2014)).[14] Ky. Rev. Stat. Ann. § 337.385 (West Supp. 2014).[15] Orms v. City of Louisville, 686 S.W.2d 464 (Ky. Ct. App. 1984).[16] Id. at 465.[17] Id.[18 ] Id.[19] City of Louisville v. Gnagie, 716 S.W.2d 236 (Ky. 1986).[20] Id. at 237.[21] Id. at 236–37.[22] De minimis is a Latin expression meaning about minimal things. It is commonly used by courts as a basis to not count certain small increments of time and the beginning and end of a workday that may otherwise be compensable.[23] Gnagie, 716 S.W.2d at 237.[24] Id.[25 ]Early v. Campbell Cnty. Fiscal Court, 690 S.W.2d 398 (Ky. Ct. App. 1985).[26] Noel v. Season-Sash, Inc., 722 S.W.2d 901 (Ky. Ct. App. 1986).[27] See id. at 903 (To reiterate, the Commissioner of Labor has original jurisdiction, as held in the Early case, only in those wage and hour disputes in which the duty to provide the benefits sought by the claimant derives solely from the statute . . . .”).[28] Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 356 (Ky. 2005).[29] See id. at 361–62.[30] See, e.g., Barker v. Family Dollar, Inc., No. 3:10-CV-00170-H, 2012 WL 5305335, at *1 (W.D. Ky. Oct. 25, 2012); Whitlock v. FSL Mgmt., LLC, No. 3:10-CV-00562-JHM, 2012 WL 3274973, at *1 (W.D. Ky. Aug. 10, 2012); McCauley v. Family Dollar, Inc., No. 3:10-CV-363-S, 2010 WL 3221880, at *1 (W.D. Ky. Aug. 12, 2010); England v. Advance Stores Co., 263 F.R.D. 423 (W.D. Ky. 2009); Hughes v. UPS Supply Chain Solutions, Inc., Nos. 2012-CA-001353-ME, 2012-CA-001757-ME, 2013 WL 4779746, at *1 (Ky. Ct. App. Sept. 6, 2013).[31] See infra notes 52–63 and accompanying text.[32 ]Hall v. Hospitality Res., 276 S.W.3d 775, 784 (Ky. 2008) (citations omitted).[33] Revenue Cabinet v. O’Daniel, 153 S.W.3d 815 (Ky. 2005).[34] Id. at 819 (citing Ronald Benton Brown & Sharon Jacobs Brown, Statutory Interpretation: The Search for Legislative Intent § 4.2, at 38 (2002)).[35] Lichtenstein v. Barbanel, 322 S.W.3d 27 (Ky. 2010).[36] Id. at 34–35 (citing MPM Financial Group Inc. v. Morton, 289 S.W.3d 193, 198 (Ky. 2009)).[37] Ky. Rev. Stat. Ann. § 337.385 (West Supp. 2014).[38] Id.[39] Id.[40] See Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 358 (Ky. 2005).[41] Ky. Rev. Stat. Ann. § 337.385 (West 2014).[42] 29 U.S.C. § 216 (2012) (emphasis added).[43] Kentucky’s Wage Discrimination Because of Sex provisions are located at Ky. Rev. Stat. Ann §§ 337.420—337.433 (West 2014).[44] Ky. Rev. Stat. Ann §§ 337.423(1) (West 2014).[45] Ky. Rev. Stat. Ann §§ 337.427(2) (West 2014) (emphasis added).[46] Califano v. Yamasaki, 442 U.S. 682 (1979).[47] Id. at 698 n. 12.[48] Id. at 700.[49] Ky. R. Civ. P. 1(2).[50] (Class Action not permitted—31 states) See, e.g., Ala. Code § 8-19-10(f) (2014); Ariz. Rev. Stat. Ann. § 33-712(C) (2014); Ark. Code Ann. § 4-87-103 (West 2014); Conn. Gen. Stat. § 36a-740 (West 2014); Fla. Stat. § 624.155(6) (West 2014); Ga. Code. Ann. § 7-4-21 (West 2014); Haw. Rev. Stat. § 477E-4(b) (West 2014); Idaho Code Ann. § 28-45-201(1) and (3) (West 2014); 740 Ill. Comp. Stat. 10/7(2) (West 2014); Iowa Code § 537.5203(1) (West 2014); Kan. Stat. Ann. § 50-634(b) (West 2014); Ky. Rev. Stat. 134.590(6) (West 2014); La. Rev. Stat. Ann. § 51:1409(A) (2014); Mich. Comp. Laws § 445.1611(1) (2014); Minn. Stat. § 325M.07 (2014); Miss. Code Ann. § 75-24-15(4) (West 2014); Mont. Code Ann. § 30-14-133(1) (West 2013); Neb. Rev. Stat. § 77-2793(1) (2014); N.H. Rev. Stat. Ann. § 359-H:4 (2014); N.J. Stat. Ann. § 46:10B-29(a)(2) (West 2014); N.C. Gen. Stat. § 75C-5 (2014); Okla. Stat. tit. 36 § 6595; Or. Rev. Stat. § 238.362(4)(a) (2014); 73 Pa. Cons. Stat. § 2208(d) (2014); R.I. Gen Laws § 15-7.2-5(b) (2014); S.C. Code Ann. § 40-39-160(1) (2013); S.D. Codified Laws § 10-47B-131.2 (2014); Tenn. Code Ann. § 56-47-108(a)(2) (West 2014); Tex. Bus. & Com. Code Ann. § 605.005 (West 2013); Utah Code Ann. § 13-37-203(3) (West 2014); Wash. Rev. Code § 63.60.070(3) (2014). (Class Action Limited – 15 states) See, e.g., Cal. Civ. Code § 1787.3(b) (West 2014); Col. Rev. Stat. § 6-1-113(2) (2014); Ind. Code 9-32-12-4(c) (2014); Me. Rev. Stat. tit. 32, § 11054(c)(2) (2014); Md. Code Ann. § 12-707(c) (West 2014); Mass. Gen. Laws ch. 140D, § 32(a)(2)(b) (2014); Mo. Rev. Stat. § 71.675(2) (2014); Nev. Rev. Stat. § 38.255(3)(b) (2014); N.M. Stat. Ann. § 58-16-15(B) (West 2014); N.Y. Gen. Oblig. Law § 5-702(a)(2) (McKinney 2014); Ohio Rev. Code Ann. § 1351.08(A)(2)(b)(ii) (West 2014); Va. Code Ann. § 8.01-316(A)(2) (West 2014); W. Va. Code § 6C-2-3(e)(2) (2014); Wis. Stat. § 426.110(3) (2013); Wyo. Stat. Ann. § 40-19-119(a)(iii) (2014).[51] See Ky. Rev. Stat. Ann. § 413.120(2) (West 2014).[52] Toyota Motor Mfg, Kentucky, Inc. v. Kelley, et al., No. 2012-CA-001508-ME, 2013 WL 6046079 (Ky. Ct. App. Nov. 15, 2013).[53] As co-author Jeff Savarise tells the story, he locked himself in his office, determined to develop an argument that would allow TMMK to prevail in this case. When he emerged, he posited the heretofore novel theory that that Kentucky Act does not permit class actions. Just as in Orms and Gnagie, there were other arguments to present on appeal, but this novel argument provided an extra layer of security in the correctness of our position.[54] TMMK, 2013 WL 6046079, at *1.[55] Id.[56] Id. at *2.[57] Id. at *2.[58] Id. at *3–4.[59] Ky. R. Civ. P. 23.06, which became effective on January 1, 2011, provides, “[a]n order granting or denying class action certification is appealable within 10 days after the order is entered. . .”[60] TMMK, 2013 WL 6046079, at *8–9.[61] Id. at *9.[62] See Brown v. Humana Inc. and Humana Ins. Co., No. 13-CI-002422 (Ky. Cir. Ct. Dec. 5, 2013).[63] Ky. Rev. Stat. Ann. § 337.427 (West 1966).[64] Smith v. Wedding, 303 S.W.2d 322, 323 (Ky. 1957) (citation omitted).[65] Fox v. Grayson, 317 S.W.3d 1 (Ky. 2010).[66] Id. at 8.[67] Rue v. Ky. Ret. Sys., 32 S.W.3d 87 (Ky. Ct. App. 2000).[68] Id. at 89.[69] Kentucky Department of Corrections v. McCullough, 123 S.W.3d 130 (Ky. 2003).[70] Ky. Rev. Stat. Ann. § 344.450 (West 1974).[71] Ky. Rev. Stat. Ann. § 344.660 (West 1991); Ky. Rev. Stat. Ann. § 344.665 (West 1992).[72] McCullough, 123 S.W.3d at 139.[73] Id. at 140 (emphasis added).[74] Griffin v. Rice, 381 S.W.3d 198 (Ky. 2012).[75] Id.at 200.[76] Id. at 201.[77] Id. at 199.[78] Id. at 202–03.[79] Id. at 202.[80] Id. at 202–03.[81] City of Somerset v. Bell, 156 S.W.3d 321 (Ky. Ct. App. 2005).[82] Id. at 326 (citing Swiss Oil Corp. v. Shanks, 270 S.W. 478 (Ky. 1925); Bd. of Educ. of Fayette County v. Taulbee, 706 S.W.2d 827 (Ky. 1986); Bischoff v. City of Newport, 733 S.W.2d 762 (Ky. Ct. App. 1987)) (emphasis in original).[83] Id. at 326.[84] Id. [85] Id. at 327 (citing Eversole v. Eversole, 185 S.W. 487, 489 (1916)).[86] Id. at 326–27.[87] Ky. Rev. Stat. Ann. § 134.590(6) (West 1992).[88] Id. (Emphasis added).

United States v. Kentucky Bar Association: In a Case Drawing National Attention, the Kentucky Supreme Court Addresses the Ethics of Waivers of Ineffective Assistance of Counsel in Plea Bargains

Article | 103 KY. L. J. ONLINE 1 | Feb 2, 2015

B. Scott West1

I.  Introduction 

In an opinion that is creating ripples throughout the country with respect to the ethics of criminal plea bargaining, the Kentucky Supreme Court in United States v. Kentucky Bar Association2 affirmed Kentucky Bar Association (“KBA”) Advisory Ethics Opinion E-4353 to be a correct statement of the Kentucky Rules of Professional Conduct.4 That advisory opinion stated that it was a concurrent conflict of interest for a criminal defense attorney to advise a client whether to accept a plea bargain which contained a prospective waiver of a claim of ineffective assistance of counsel (IAC) against that attorney, and that likewise it was a violation of the rules for a prosecutor to induce or assist an attorney to violate the Rules of Professional Conduct by including such a waiver in an offer on a plea of guilty.5The outcome of the case is significant, given the events of the last couple of decades, where federal substantive law on the validity of waivers of constitutional rights found itself juxtaposed against the ethical requirements placed upon the attorneys involved in the plea bargain, the prosecutor and the criminal defense attorney. Specifically, the substance of KBA E-435 arguably conflicted with the federal circuit courts that had one by one applied traditional waiver analysis to the issue of IAC claims and had affirmed their validity. As more circuit courts affirmed the constitutional validity of the waivers, they began to become more prevalent in plea bargains on both state and federal levels. And as the use of such waivers became more popular with prosecutors, so grew the opportunities for various state bar ethics authorities to address the issue of the ethics of including such waivers in plea bargains. Almost as quickly as the circuit courts were affirming waivers, the vast majority of state ethics authorities found the inclusion of an IAC waiver into a plea offer to place the criminal defense attorney into an irreconcilable conflict of interest. The question necessarily arose, which interpretation takes precedence: the federal circuits that have found such waivers to be valid, or the ethics opinions that proscribe the inclusion of such waivers into plea bargains?It was against this backdrop that KBA E-435 originated. With its publication by the Kentucky Board of Governors, and a state supreme court rule which allows any person “aggrieved” by an ethics opinion to challenge the opinion directly in the Kentucky Supreme Court,6 a forum was presented with which to have the issue decided. For the first time a court would decide on the merits of whether a state ethics rule would take precedence over circuit court waiver analysis. While a Kentucky opinion would not be binding on other states’ courts or United States federal courts outside of Kentucky, the outcome would nevertheless be persuasive.This past August, the Kentucky Supreme Court became the first court to pronounce that prospective IAC waivers included within plea bargains did, in fact, present a conflict of interest for the criminal defense attorney.7 In so doing, the Court drew a sharp line of distinction between federal substantive law, which had discussed in a vacuum the issue of whether the right to file an IAC was waivable, and the behavior of the attorneys involved in advising a client about a waiver or conditioning an offer on entry of a waiver. Shortly after the issuance of the opinion, federal prosecutors indicated that they “no longer will ask criminal defendants who plead guilty to waive their right to appeal over bad legal advice,”8 and as expected, Attorney General Eric Holder officially announced this development on October 14, 2014.9 This change signals an about-face of a practice that has been prevalent within the federal court system for the last decade or so—the reversal of a position to which the United States had steadfastly clung even as late as a year ago, when the United States decided to challenge the validity of KBA E-435. More importantly, the case stands as a beacon of continuing hope to those who plead guilty to a crime due to the ineffective advice of their attorneys, only later to find out that they should not have accepted their plea bargains, or even pled guilty at all.

II.  Ineffective Assistance of Counsel Claims and the Proliferation of Waivers

Any discussion about the ethical propriety of advising a client whether to waive a potential IAC claim necessarily must start with a description of the claim being waived. An IAC claim is essentially a claim filed in the trial court10 urging the court to vacate the conviction on the ground that the client’s Sixth Amendment Right to counsel has been abrogated.11 The right to counsel has been construed to mean the right to effective assistance of counsel,12 and in Strickland v. Washington,13 the Supreme Court expounded that effective counsel means that counsel’s performance meets “an objective standard of reasonableness.”14 This effectiveness extends to an attorney’s role in advising a client whether to plead guilty pursuant to a plea bargain.15 However, “[j]udicial scrutiny of counsel’s performance must be highly deferential.”16 In order to establish ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.17

This standard can prove to be a difficult one for a claimant to meet, and in fact, has been criticized as being too deferential of attorneys’ performances, leading to courts not finding deficient performances often enough.18 According to a paper published by The Innocence Project, relying on a study by the National Center for State Courts, IAC claims are the “most commonly raised issues,” being raised in nearly half of all state post-conviction appeals, with only about eight percent of them being successful.19 On the other hand, it is true also that many post-conviction IAC claims are not well grounded in fact, and are often just another step in the appeal process and part of the job of being a criminal defense lawyer. “Attorneys who try criminal cases should not be surprised by challenges to their competency and integrity, for the claim of ineffective assistance of counsel is often a last appeal for the disappointed client.”20No wonder, then, that federal prosecutors – out of honorable desires of promoting finality of decisions, deterring waste of court resources, and avoiding having to respond to spurious IAC claims21 – began to require waivers of IAC claims in cases where the plea bargain being offered was exceptionally good, at least in the eyes of the prosecutors. Whereas before, prosecutors have required waivers of the right to direct appeal of convictions and sentences during plea colloquies, “increasingly . . . prosecutors have enlarged the scope of such waivers to include waiving all constitutional and procedural errors, even unknown ineffective assistance of counsel claims . . . .”22 At some point, however, the insertion of IAC waivers into federal plea bargains became routine.23 One study looked at the “boilerplate” plea agreements used in every federal jurisdiction – 114 in all, including at least one plea agreement from each of the 94 federal districts – and concluded that roughly a quarter of them contain language that waives all forms of collateral attacks, including claims of ineffective assistance of counsel.24Challenges to the validity of the waivers themselves arose in virtually every circuit, and in turn, between 1991 and 2005 virtually every circuit applied traditional waiver analysis and came to the conclusion that prospective waivers of IAC could be valid.25 As the Sixth Circuit Court of Appeals observed in Davila v. United States, “[w]hen a defendant knowingly, intelligently, and voluntarily waives the right to collaterally attack his or her sentence, he or she is precluded from bringing a claim of ineffective assistance of counsel . . . .”26 However, none of the circuits up to this point addressed the issue of the ethics involved when a client waives a potential IAC against the very defense attorney advising the client on the plea agreement in which the waiver was contained. Simply put, the issue before the courts was only about whether the right to file an IAC – a right grounded in the Sixth Amendment right to counsel – was waivable.

III. State Bar Ethics Committees – Including Kentucky – Address the Ethics of IAC Waivers, and a Trend Starts Reversing 

Almost co-incident with the publication of the circuit opinions approving the validity of IAC waivers in plea bargains, various state bar ethics committees began to address the issue of whether it was a violation of the rules of professional conduct for a defense attorney to advise his or her client to enter a plea bargain which contained a waiver of future potential IAC claims against the attorney.27 The earliest states to consider the issue were North Carolina,28 Tennessee,29 Vermont,30 Arizona,31 and Ohio,32 which decided the issues between 1993 and 2001. North Carolina, who had adopted a version of the Model Rules of Professional Responsibility, opined that “the waiver of rights arising from the ineffective assistance of counsel . . . appears to be, and shall prospectively be deemed to be, in conflict with the ethical duties expressed or implied in the rules.”33 Tennessee, Vermont, and Ohio all referenced their state’s versions of the Model Code of Professional Responsibility’s Disciplinary Rule 6-102, which generally provide that “[a] lawyer shall not attempt to exonerate himself from or limit his liability to his client for personal malpractice.”34 Only Arizona, which also was decided under the Model Code of Professional Responsibility, failed to find an ethical breach, finding instead that there was a distinction between a malpractice claim and an IAC, and therefore, the Code did not prohibit the activity.35Then, between 2006 and 2013 – perhaps due to what Ellis and Bussert refer to as a “tide of postconviction waivers” appearing routinely in federal plea agreements36 – seven other states, including Kentucky, began to address the issue.In 2006, Texas interpreted Rule 1.7 of the Texas Disciplinary Rules of Professional Conduct, which is worded substantively differently from the version contained in the ABA’s Model Rules of Professional Conduct (RPC), to read that no conflict of interest is created when an attorney recommends a waiver of a potential IAC claim unless the attorney’s representation reasonably appears to be or becomes adversely limited.37 In short, the Texas rule appears to focus not on a risk of limitation of representation, as is true in the versions of Model Rules decided by the other states, but on something closer to actual limitation.Missouri,38 Alabama,39 Nevada,40 Virginia,41 Florida,42 and Kentucky43 decided the issue under their respective, but substantively similar, versions of the RPC and came to substantially identical conclusions. The opinions relied principally upon interpretations of RPC 1.7, 1.8(h), 8.4(a)44 and in the case of Kentucky, 3.8(b).45Kentucky’s KBA E-435’s opinion arose, as do all Kentucky informal ethics opinion, as a response to a request of a practitioner who raises an issue that the Committee believes is pertinent to attorneys in general.  After the committee agrees to address a question via an opinion, a member drafts the opinion (in this case, the KBA Ethics Committee Chair Grace M. Giesel),46 who – after robust discussion and vetting by the other members of the Committee – edits the opinion and submits it to the Kentucky Bar Board of Governors for their own discussion and subsequent approval or disapproval. If approved, the advisory opinion is ordered officially published in Kentucky Bench & Bar. KBA E-43547 was approved, and is summarized as follows:

• RPC 1.7 prohibits an attorney from advising a client about a plea agreement which contains a waiver of a prospective IAC against that attorney because there is a concurrent conflict of interest with the client.48 RPC 1.7(a) provides in pertinent part that:

Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: . . . (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.49

KBA E-435 opined that “[t]he lawyer has a clear interest in not having his or her representation of the client challenged on the basis of ineffective assistance of counsel. The lawyer certainly has a personal interest in not having his or her representation of the client found to be constitutionally ineffective.”50

• By analogy to RPC 1.8(h), which limits prospective waivers of malpractice but which is not directly applicable to IAC’s, a lawyer cannot ethically advise a client about an IAC waiver because it is the attorney’s own professional conduct which stands as the underlying basis for the claim.51 In fact, comment 14 to Rule 1.8 provides:

Agreements prospectively limiting a lawyer’s liability for malpractice are prohibited unless the client is independently represented in making the agreement because they are likely to undermine competent and diligent representation. Also, many clients are unable to evaluate the desirability of making such an agreement before a dispute has arisen, particularly if they are then represented by the lawyer seeking the agreement.52

• RPC 3.8(b) provides that a prosecutor must “make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel.”53 Comment 1 to RPC 3.8 states that “[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice . . . .”54

KBA E-435 opined that it was “inconsistent with the prosecutor’s role as a minister of justice and the spirit of SCR(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 ineffective assistance of counsel.”55

• Finally, RPC 8.4(a) provides that “[i]t is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional conduct, knowingly assist or induce another to do so, or do so through the acts of another.”56 KBA E-435 opined that “[i]n making such a proposal, a prosecutor is assisting or inducing another lawyer, defense counsel, to violate the Rules of Professional Conduct, conduct proscribed by Rule 8.4(a).”57

With the adoption of KBA E-435 by the Kentucky Board of Governors, and its publication in Kentucky Bench & Bar magazine, Kentucky in 2013 joined the growing list of jurisdictions that found the practice of inclusion of IAC waivers to be unethical. It was a trend that did not escape the notice of at least one circuit court, which only a decade earlier had approved the validity of IAC waivers.58In Watson, the Eighth Circuit Court of Appeals revisited the issue of IAC waivers when a defendant brought an action pursuant to 28 U.S.C. § 2255 to vacate a sentence he received for pleading guilty to a drug conspiracy charge.59  The district court had denied the motion because his plea agreement contained a waiver of ineffective assistance of counsel claims.60 The Court of Appeals stated that the “[d]ismissal of a section 2255 motion on the basis of a waiver in the plea agreement is appropriate when the defendant’s claims of ineffective assistance relate to the negotiation of, and entry into, the plea agreement and waiver.”61However, the Court then noted that in a previous decision, it had been suggested that DeRoo should be refined to mean that a general waiver of the right to bring post-conviction claims under 28 U.S.C. § 2255 would not be sufficient to waive such a claim of ineffective assistance of counsel, absent an explicit waiver of the Sixth Amendment right to counsel which explained the concept of ineffective assistance of counsel.62 Such a waiver would be considered “knowing and voluntary” under the law of that Circuit provided that such a waiver of the Sixth Amendment right to counsel did not result in a “miscarriage of justice.”63 However, Chesney did not adopt such a refinement of DeRoo, since in that case the defendant’s waiver did not specifically mention the Sixth Amendment.64Then, the Court declined to adopt the Chesney refinement of DeRoo in the Watson case, and it did so for a very interesting reason:

We are not inclined to decide whether to adopt Chesney's refinement of DeRoo in this particular case, however, because the parties failed to address an issue we find difficult to ignore in determining whether Watson knowingly and voluntarily waived his right to bring an ineffective assistance claim with respect to matters directly related to the plea agreement. Ethics opinions from various states have addressed whether a defendant's attorney labors under a conflict of interest when advising a client to waive an ineffective assistance of counsel claim, with conflicting results. Watson does not claim his counsel labored under a conflict of interest when advising him to enter the plea agreement, and the parties did not brief this issue. We therefore believe it prudent to forego the issue of whether DeRoo should be refined by Chesney's suggestions until this related issue on a potential conflict of interest is fully aired by the adversarial process.

Instead, we accept the government's invitation to determine whether the district court should be affirmed in any event because Watson's ineffective assistance claim fails on the merits.65

Thereafter, persuaded by Watson, the Eastern District of Pennsylvania, in United States v. Deluca, decided against enforcement of a waiver of an IAC contained in the plea bargain before it.66 In Deluca, the court took note of state ethics opinions from the various states:

Although the Pennsylvania Bar has not addressed this issue,67 there appears to be an emerging trend among state bar ethics committees to recognize a criminal defense lawyer's personal interest in avoiding ineffective assistance of counsel claims may create a conflict of interest for the lawyer in advising his client regarding a plea agreement that would waive such claims. These ethics opinions do not purport to address the legality or enforceability of waivers of ineffective assistance of counsel claims, in some instances recognizing these issues are for the courts . . . . Although the Government urges this Court to likewise hold any conflict of interest in this case was merely speculative, the weight of ethics opinions to the contrary gives this Court pause in doing so.68

If nothing else, Watson and Deluca signaled that federal courts were no longer going to merely consider the validity of IAC waivers contained in plea agreements in a vacuum; the growing trend of ethics opinions denouncing the behavior of including such waivers in plea agreements were sufficient to give pause in enforcing the waivers. Both the Watson and Deluca courts declined to enforce the waivers, instead deciding the IAC issues on their merits.69 Nevertheless, the courts stopped short of addressing the ethical implications of inclusion of IAC waivers in plea agreements, in the case of Watson, because the parties had not addressed the issue in the briefing,70 and in the case of Deluca, because the Pennsylvania Bar had not opined on the ethics.71Something had to give; either the practice of placing waivers of IAC claims into plea agreements would have to be curtailed for ethical reasons (at least in those cases where the state’s ethic authorities found the practice to be barred under the state’s ethical code or rules), or, alternatively, at least in the federal courts, state ethical decisions would have to be subordinate to federal circuit case decisions which found such waivers to be valid after applying traditional waiver analysis. It was in this environment that the United States, acting through its United States Attorneys for both Eastern and Western Districts of Kentucky, filed suit against the Kentucky Bar Association,72 urging the Kentucky Supreme Court to strike down KBA E-435 either as violating federal law under the supremacy clause,73 or as misinterpreting the Kentucky Rules of Professional Conduct.

IV.  United States v. Kentucky Bar Association 

Pursuant to Kentucky Supreme Court Rule 3.530(12), any party or entity aggrieved or affected by a formal opinion of the Kentucky Board of Governors may file within thirty days of the opinion’s publication in Kentucky Bench & Bar magazine for a review of the opinion by the Kentucky Supreme Court.74 Thereafter, the Director of the Kentucky Bar Association may file a response within thirty days.75On April 29, 2013, the United States petitioned the Kentucky Supreme Court for review. The United States urged the court to vacate KBA E-435, arguing that the advisory opinion conflicted with controlling federal law,76 and that “[s]imply, the Board lack[ed] ‘the power, in the guise of regulating ethics, to impose strictures that are inconsistent with federal law.’”77 The United States also argued that the KBA “wrongfully conclude[d] that an ineffective assistance of counsel waiver creates an automatic conflict of interest for defense counsel that cannot be waived and that a prosecutor who makes a plea offer containing such a waiver violates the Rules of Professional Conduct.”78 The government explained: “If lawyers are presumed to provide competent representation and, by the time of the plea, a defense attorney is not aware of, or has not otherwise been accused of providing, ineffective representation, there is no ‘significant risk’ that counsel’s plea representation will be materially compromised by the possibility that, sometime in the future, counsel’s representation might be deemed ineffective.”79The impact of a holding in favor of the United States’ arguments would be clear: ineffective assistance of counsel claims could be waived out of existence, at least in the state of Kentucky. While not every plea bargain currently contains an IAC waiver, a Kentucky Supreme Court opinion upholding the practice of including and advising about such waivers could inevitably lead to a proliferation of their use. Moreover, with Kentucky being the first state to address the issues of “waiver v. ethics” on the merits, the case drew national attention.80 The National Association of Criminal Defense Attorneys81 (along with eighteen Legal Ethics Professors82 and sixteen Legal Ethics Practitioners83 located throughout the country) filed an amicus brief 84 in favor of the respondent, Kentucky Bar Association, as did Western Kentucky Community Defender, Inc.85 in Louisville, Kentucky, and the Innocence Network.86While the case was pending, the American Bar Association Criminal Justice Section proposed Resolution 113E. The resolution was introduced by George Washington University Law School’s Stephen A. Saltzburg and unanimously adopted by the ABA House of Delegates at their annual meeting on August 12-13, 2013.87 The resolution stated that the ABA opposed “plea or sentencing agreements that waive a criminal defendant’s post-conviction claims addressing ineffective assistance of counsel, prosecutorial misconduct or destruction of evidence unless based upon past instances of such conduct that that are specifically identified in the plea or sentencing agreement or transcript of the proceeding.”88In August 2014, the Kentucky Supreme Court handed down its opinion, addressing all of the issues raised by the United States, the KBA, and the Amicus parties.89 In a unanimous opinion authored by Chief Justice John D. Minton, Jr., the Court held that there was no conflict between Kentucky’s ethics rules and federal law, and that KBA E-435 accurately stated Kentucky’s ethical rules.90

A.  KBA E-435 Held Not to Violate the Supremacy Clause or Conflict with Federal Law

The court first addressed what it called an “issue of weighty concern,” that the ethics opinion violated the Supremacy Clause “because it stands in direct conflict with federal case law, statutes, and regulations.”91 The court recognized that to accept this argument, it would be “compelled to vacate E-435 as applied to the United States.”92 However, the court declined to agree with what it referred to as the United States’ “remarkable" notion.93First, the court noted that 28 U.S.C. § 530B provided that all government attorneys are bound by ‘“[s]tate 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.’”94 Clarifying the previous statute, the Attorney General issued 28 C.F.R § 77.1(b), requiring ‘“[d]epartment attorneys to comply with state and local federal rules of professional responsibility.’”95However, the court stated that “[28 U.S.C. § 530B] should not ‘be construed in any way to alter federal substantive, procedural, or evidentiary law.’”96 The primary issue(s) before the court, then, was the “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,”97 and whether “the Supremacy Clause demands E-435’s lurking constitutional concerns be resolved.”98 In a footnote, the court found that “[i]n this particular case, the perplexity is increased by the fact that the Executive Branch, through the Office of Attorney General, is attempting to dictate to the Judicial Branch the standards for which attorneys, i.e., officers of the courts, should uphold.”99The court acknowledged that the vast majority of federal circuit courts had upheld the validity of IAC waivers in plea agreements, but then firmly drew the line between the waivers themselves and the acts of the attorneys involved:

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. 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. So this Court's review of an IAC waiver's validity in the context of a plea agreement waits for another day.100

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. 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.101

Thereafter, the court discussed why there was no other controlling federal law that would mandate vacation of E-435 under the Supremacy Clause.102

B.  KBA E-435 Held to be the Correct Interpretation of Kentucky’s Rules of Professional Conduct

Having decided that KBA E-435 was not precluded by the Supremacy Clause – and therefore, if accurate, binding upon all attorneys practicing within state and federal courts within Kentucky – the court turned its attention to whether the ethics opinion accurately articulated the ethical concerns associated with allowing IAC waivers in plea agreements.103 The court recognized that E-435 did “not express a novel position,”104 and that it was “align[ed] with the vast majority of state ethics decisions.”105 Further, the court stated that, “[t]he 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.’ We choose the beaten path today.”106Point by point, the court affirmed the reasoning of E-435.

• RPC 1.7: With regard to whether waivers present a conflict of interest for the defense attorney, the court found that:

The goal of [RPC 1.7] is to lessen the possibility of a ‘lawyer’s own interests . . . hav[ing] an adverse effect on [the] representation of a client. . . .’107 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, 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.108

The court rejected the United States’ notion that an attorney’s personal interest will not “ordinarily” create a significant risk that a client’s representation will be materially limited.109 “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.”110

• RPC 1.8(h), to which E-435 had analogized and which the United States had argued was irrelevant and inapplicable to an IAC waiver, was found to be more than an analogy by the court. The court found a link between an IAC claim and a potential claim for malpractice.111 “In Kentucky, to claim malpractice in a criminal case, just the same as a civil case, a defendant must show proximate cause. . . . [S]uffice it to say that without having his conviction overturned, a defendant's attempt at proving proximate cause becomes extraordinarily difficult, virtually impossible.”112

[P]ublic policy supports our conclusion that advising on an IAC waiver in a plea agreement is prohibited under [RPC] 1.8(h). Criminal defendants, of course, seldom bring malpractice actions.  Instead, the usual course of action is via an action under [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.]"113

• RPC 3.8(b) was held to be applicable to prosecutors who would impose a waiver of an IAC claim as a condition of a plea offer:

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. 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.114

• Finally, the Supreme Court agreed with E-435 that plea bargains conditioned upon IAC waivers violate the spirit of RPC 3.8, which describe a prosecutor’s role to be a “minister of justice.”115 A prosecutor is charged with “‘see[ing] that the defendant is accorded procedural justice,’ and we simply do not believe the use of IAC waivers lives up to that lofty expectation.”116

The Kentucky Supreme Court concluded its opinion succinctly and firmly:

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, including IAC, violates our Rules of Professional Conduct.117

V.  What Happens Next? 

Immediately following the issuance of United States v. Kentucky Bar Association, the opinion was applauded as being the first to address the merits of whether a state ethics rule prohibiting waivers would take precedence over the established federal practice of allowing IAC waivers in plea bargains. John Wesley Hall, who argued the case on behalf of amicus participant NACDL and the ethics professors and practitioners, stated “[n]ow we have an appellate court, in a lengthy and compelling opinion, joining many ethics opinions on the subject.”118 Daniel Goyette, Executive Director of the Louisville-Jefferson County Public Defender Corporation, stated “[t]he much anticipated decision by the Supreme Court of Kentucky is certain to have a broad national impact on the practice of criminal cases, both in terms of law and ethics.”119As previously stated, Attorney General Eric Holder issued a shift in policy under which United States Attorneys “should no longer seek in plea agreements to have a defendant waive claims of ineffective assistance of counsel.”120 The memorandum to federal prosecutors stated that, while a “majority of United States Attorney’s offices do not seek a waiver,” the Department of Justice has a “strong interest in ensuring that individuals facing criminal charges receive effective assistance of counsel.”121 Further, while a majority of prosecutors “do not seek a waiver,” the Department was interested in bringing “consistency” in the practice of making plea bargains, and in supporting the “underlying Sixth Amendment right.”122It is unknown whether the Attorney General’s decision was based, in part, on the decision in United States v. Kentucky Bar Association; the memorandum stated that the Department was “confident” that a waiver of ineffective assistance of counsel was both legal and ethical.123 Nevertheless, as can be inferred from the Wall Street Journal Online article, the timing of the issuance of the memorandum announcing the policy change suggests that the outcome of the opinion may have had some persuasive value.124 In this sense, the United States Attorneys who brought the challenge to the Kentucky Supreme Court should be commended for courageously bringing to a head an issue that perhaps ought to have been decided by some court, somewhere, a long time ago. By appealing E-435, the long-standing tension between federal court decisions which have upheld waivers of IAC claims, and the ethics decisions of most of the state bars who have decided the issue, are resolved.

1 B. Scott West is the General Counsel of the Kentucky Department of Public Advocacy, and a member of the KBA Ethics Committee. He, along with KBA Executive Director John Downing Meyers and KBA Bar Counsel Thomas H. Glover, represented the KBA in U.S. v. Ky. Bar Ass’n. Thanks to Thomas H. Glover for his editing and insight of this article prior to submission. Thanks also to Edward C. Monahan, Kentucky’s Public Advocate, for allowing his General Counsel to participate and represent the KBA in this case and to write this article.

2 U.S., ex rel. U.S. Attorneys for the E. & W. Dists. of Ky. v. Ky. Bar Ass’n,, 439 S.W.3d 136 (Ky. 2014).3 Ky. Bar Ass’n, Advisory Op. KBA E-435 (2012) (As found in Bench and Bar, March 2013, at 34–35).4 Ky. Rev. Stat. Ann. S. Ct. Rule 3.130 (West 2014) [hereinafter SCR].5 Ky. Bar Ass'n, supra note 3.6 SCR 3.520(12) (West 2014). In the event of an inquiry of the Kentucky Bar Association, under the interpretation of KBA E-435 a United States Attorney could possibly be found to be in violation of the Rules of Professional Conduct by including waivers in plea agreements. Thus, the United States would be an “aggrieved” person for purposes of a challenge.7 See U.S., ex rel. U.S. Attorneys for the E. & W. Dists. of Ky. v. Ky. Bar Ass’n,, 439 S.W.3d 136 (Ky. 2014); Joe Palazzolo, Government Rethinks Waivers With Guilty Pleas: Defense Lawyers Say Giving Up Right to Appeal Presents Conflicts of Interest, Wall St. J. (Sept. 26, 2014, 12:19 PM), http://online.wsj.com/articles/u-s-government-seeks-to-curb-appeals-over-bad-legal-advice-1411745218.8 Palazzolo, supra note 7.9 Eric Tucker, US Sets New Policy on Ineffective Lawyer Claims, Associated Press (Oct. 14, 2014 4:39 PM), http://hosted.ap.org/dynamic/stories/U/US_JUSTICE_INEFFECTIVE_COUNSEL?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2014-10-14-13-31-40.10 In Kentucky state courts, the procedure for asserting ineffective assistance of counsel is codified in Ky. R. Crim. P. 11.42. In the federal system, the procedure is codified at 28 U.S.C. § 2255 (2008) .11 The Sixth Amendment of the Constitution of the United States provides in pertinent part that “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const. amend. VI.12 McMann v. Richardson, 397 U. S. 759, 771, n.14 (1970) (emphasis added).13 Strickland v. Washington, 466 U.S. 668, 688 (1984).14 Id.15 See, e.g., Padilla v. Kentucky, 559 U.S. 356, 364 (2010) (“Before deciding whether to plead guilty, a defendant is entitled to ‘the effective assistance of competent counsel.’”).16 Strickland, at 689.17 Id. at 687.18 See, e.g., Conference Addresses Inadequate Counsel for Poor, Equal Justice Initiative, (Nov. 15, 2007), www.eji.org/node/96.19 Dr. Emily M. West, Director of Research, Court Findings of Ineffective Assistance of Counsel Claims in Post-Conviction Appeals Among the First 255 DNA Exoneration Cases, The Innocence Project 1  (Sept. 2010), www.innocenceproject.org/docs/Innocence_Project_IAC_Report.pdf (citing Brandon Garrett, Judging Innocence, 108 Colum. L. Rev. 107 (2008); Victor E. Flango, Habeas Corpus in State and Federal Courts, NCJRS 45 (1994) , https://www.ncjrs.gov/pdffiles1/Digitization/149658-149664NCJRS.pdf.  Dr. West is no relation to the author.20 Richard H. Underwood & William H. Fortune, Trial Ethics 383 (1988).21 Allan Ellis & Todd Bussert, Stemming the Tide of Postconviction Waivers, 25 CRIMINAL JUSTICE 1 (2010) (“While we recognize there exists a systemic interest in finality and minimizing meritless claims, the appeal and post-conviction waivers that have crept into the federal plea negotiation process require diligent attention.” Mr. Ellis is a past president of the National Association of Criminal Defense Lawyers and a contributing editor to Criminal Justice magazine . Mr. Bussert is a past chair of the ABA Criminal Justice Section’s Corrections & Sentencing Committee.22 Peter A. Joy & Rodney J. Uphoff, Systemic Barriers to Effective Assistance of Counsel in Plea Bargaining, 99 Iowa L. Rev. 2103, 2106 (2014), reprinted in Washington University in St. Louis School of Law Legal Studies Research Paper Series, Paper No. 14-08-03 (Aug. 2014) . Mr. Joy is the Henry Hitchcock Professor of Law and the Director of the Criminal Justice Clinic at Washington University School of Law in St. Louis; Mr. Uphoff is the Elwood Thomas Missouri Endowed Professor of Law at the University of Missouri School of Law.23 Ellis & Bussert, supra note 21.24 Susan R. Klein et al., Waiving the Criminal Justice System: An Empirical and Constitutional Analysis 18 (University of Texas Sch. of Law, Pub. Law & Legal Theory Working Paper No.556, 2014), available at http://ssrn.com/abstract=2422545. The study found that sixty-seven and a half percent (67.5) of the form agreements contain a waiver of collateral attack, and of these, sixty-four percent (64%) accepted IAC claims from waiver . Applying the math, this means that twenty-four and three-tenths percent (24.3%) contained waivers of collateral attacks which included IACs.25 United States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005); Williams v. United States, 396 F.3d 1340, 1341–42 (11th Cir. 2005); United States v. White, 307 F.3d 336, 343-44 (5th Cir. 2002); Davila v. United States, 258 F.3d 448, 451 (6th Cir. 2001); United States v. Cockerham, 237 F.3d 1179, 1190–91 (10th Cir. 2001); DeRoo v. United States, 223 F.3d 919, 923 (8th Cir. 2000); Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999); Watson v. United States, 165 F.3d 486, 489 (6th Cir. 1999); United States v. Rosa, 123 F.3d 94, 101 (2nd Cir. 1997); United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993).26 Davila, 258 F.3d at 451.27 Every state bar ethics authority that considered this issue had adopted some version of the ABA’s Model Rules of Professional Conduct, with the exception of Ohio, Tennessee and Vermont, whose ethics at the time of decision were governed by the Ethical Canons and Disciplinary Rules of the Model Code of Professional Responsibility. See infra notes 28–45 and accompanying text.28 N.C. State Bar Ethics Comm’n., Formal Op. RPC 129 (2d revision)(1993).29 Tenn. Bd. Prof’l Resp., Advisory Op. 94-A-549 (1994).  30 Vt. Bar Ass’n. Advisory Ethics Op. 95-04 (1995) .31 Ariz. State Bar Comm. on the Rules of Professional Conduct, Op. 95-08 (1995).32 Ohio Bd. of Comm’rs on Grievances and Discipline, Op. 2001-6 (2001).33 N.C. State Bar Ethics Comm’n, supra note 26.34 Ohio Bd. of Comm’rs on Grievances and Discipline, supra note 32, at 1; Tenn. Bd. Prof’l Responsibility, supra note 29; Vt. Bar Ass’n, supra note 30, at 1.35 Ariz. State Bar Comm., supra note 31.36 Ellis & Bussert, supra note 21.37 Supreme Court of Tex. Prof’l Ethics Comm., Op. 571 (2006).38 Advisory Comm. of the Supreme Court of Mo., Formal Op. 126 (2009).39 Ala. State Bar, Formal Ethics Op. 2011-02 (2011).40 State Bar of Nev. Standing Comm. on Ethics and Prof’l Responsibility, Formal Op. 48 (2011).41 Va. State Bar, Op. 1857 (2011).42 Prof’l Ethics of the Fla. Bar, Op.12-1 (2013).43 Ky. Bar Ass'n, supra note 3.44 See Ala. State Bar, supra note 39; Prof'l Ethics of the Florida Bar, supra note 42; Advisory Comm. of the Supreme Court of Mo., supra note 38; State Bar of Nev. Standing Comm. on Ethics and Prof'l Responsibility, supra note 40; Va. State Bar, supra note 41.45 See Ky. Bar Ass'n, supra note 3.46 Grace M. Giesel is the Bernard Flexner Professor at the University of Louisville Louis D. Brandeis School of Law where she teaches ethics courses to law students. Grace M. Giesel, University of Louisville Brandeis School of Law, http://www.law.louisville.edu/faculty/grace_giesel (last visited Oct. 14, 2014).47 Ky. Bar Ass’n, supra note 3.48 Id. (citing SCR 3.130(1.7) (West 2014)49 SCR 3.130(1.7(a)) (West 2014).50 Ky. Bar Ass'n, supra note 3.51 Id. (citing SCR 3.130(1.8(h)) (West 2014)).52 SCR 3.130(1.8) cmt. 14 (West 2014).53 SCR 3.130(3.8(b)) (West 2014).54 SCR 3.130(3.8) cmt. 1 (West 2014).55 Ky. Bar Ass’n, supra note 3.56 SCR 3.130(8.4(a)) (West 2014).57 Ky. Bar Ass’n, supra note 3.58 See Watson v. United States, 682 F.3d 740 (8th Cir. 2012); DeRoo v. United States, 223 F.3d 919 (8th Cir. 2000).59 See generally Watson, 682 F.3d at 740.60 Id. at 741.61 Watson, 682 F.3d at 743 (citing DeRoo, 223 F.3d at 924).62 Chesney v. United States, 367 F.3d 1055, 1058 (8th Cir. 2004).63 Watson, 682 F.3d at 744.64 Id. (citing Chesney, 367 F.3d at 1059).65 Id. at 744–45 (emphasis added) (citation omitted).66 See United States v. Deluca, No. 08-108, 2012 WL 5902555 (E.D. Pa. 2012).67 While the Pennsylvania Bar had not addressed the issue at the time of the Deluca opinion, it did so in 2014 in Pa. Bar Ass’n. Formal Ethics Op. 2014-100, and it concluded that IAC waivers in plea agreements are unethical. Josh J.T. Byrne, Roundup of Bar Associations’ Ethics Advisory Opinions, The Legal Intelligencer (Aug. 25, 2014), http://www.thelegalintelligencer.com/id=1202667804874/Roundup-of-Bar-Associations-Ethics-Advisory-Opinions.68 Deluca, No. 08-108, 2012 WL 5902555, at *10 (E.D. Pa. 2012) (emphasis added).69 Watson, 682 F.3d at 744–45; Deluca, 2012 WL 5902555, at *10.70 Watson, 682 F.3d at 744.71 Deluca, 2012 WL 5902555, at *10.72 Brief of U.S. in Support of Motion for Review of Ethics Opinion at 1–2, U.S., ex rel. U.S. Attorneys for the E. & W. Dists. of Ky. v. Ky. Bar Ass’n,, 439 S.W.3d 136 (Ky. 2014).73 U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”).74 SCR 3.530(12).75 Id.76 Brief of the U.S. in Support of Motion for Review of Ethics Opinion, at 1, U.S., ex rel. U.S. Attorneys for the E. & W. Dists. of Ky. v. Ky. Bar Ass’n,, 439 S.W.3d 136 (Ky. 2014).77 Id. at 9 (citing Stern v. U.S. Dist. Ct., 214 F.3d 4, 20 (1st Cir. 2000)).78 Id. at 1.79 Id. at 13.80 See, e.g., Palazzolo, supra note 7.81 “[The] NACDL, organized in 1958, is the preeminent bar association for criminal defense lawyers in the United States, representing 9,500 direct members and 32,000 members through its 85 affiliate organizations.” Brief for Nat’l Ass’n of Crim. Def. Lawyers et al. as Amici Curiae Supporting Respondent, at i, U.S., ex rel. U.S. Attorneys for the E. & W. Dists. of Ky. v. Ky. Bar Ass’n,, 439 S.W.3d 136 (Ky. 2014).82 Professor Janet Ainsworth, Seattle University School of Law, Seattle, Washington; Professor Gabriel J. Chin, University of California, Davis School of Law, Davis, California; Professor Liz Ryan Cole, Vermont Law School, S. Royalton, Vermont; Associate Professor Tigran Eldred, New England School of Law, Boston, Massachusetts; Professor Andrew Guthrie Ferguson, David A. Clarke School of Law, University of the District of Columbia, Washington, D.C.; Professor Lawrence Fox, Yale Law School, New Haven, Connecticut; Professor Monroe Freedman, Hofstra University School of Law, Hempstead, New York; Professor Babe Howell, CUNY School of Law, Long Island City, New York; Professor Peter Joy, Washington University School of Law, St. Louis, Missouri; Professor Susan Klein, University of Texas Law School, Austin, Texas; Professor Carol Langford, University of San Francisco Law School, San Francisco, California; Professor Richard A. Leo, University of San Francisco, San Francisco, California; Professor Michael J. Zydney Mannheimer, Salmon P. Chase College of Law, Highland Heights, Kentucky; Professor Milan Markovic, Texas Wesleyan University School of LaFayette, Fort Worth, Texas; Professor Kevin Mohr, Western State College of Law, Fullerton, California; Professor Ellen Podgor, Stetson University College of Law, Gulfport, Florida; Associate Professor Keith Swisher, Phoenix School of Law, Phoenix, Arizona; and, Professor Richard Zitrin, Hastings College of the Law, San Francisco, California. Id. at iv.83 James Ellis Arden, Law Offices of James Ellis Arden, North Hollywood, California; David M. Bigeleisen, San Franscisco, California; James Bolan, Brecher, Wyner, Simons, Fox and Bolan, LLP, Boston, Massachusetts; Darren R. Cantor, Darren R. Cantor, P.C., Denver, Colorado; David J. Chapman, DJ Chapman Law, P.C., Fargo, North Dakota; Edward X. Clinton, Jr., The Clinton Law Firm, Chicago, Illinois; Richard A. Greenberg, Rumberger, Kirk & Caldwell, P.A., Tallahassee, Florida; Harry H. Harkins, Jr., Atlanta, Georgia; Williams Hodes, The William Hodes Law Firm, Indianapolis, Indiana; John J. Mueller, John J. Mueller LLC, Cincinnati, Ohio; Arden Olson, Harrang Long Gary Rudnick P.C., Eugene, Oregon; Seth Rosner, Saratoga Springs, New York; Evan Shirley, Shirley and Associates, Honolulu, Hawaii; Neal R. Sonnett, Neal R. Sonnett, P.A., Miami, Florida; Brian Tannenbaum, Tannenbaum Weiss, P.L., Miami, Florida; and, Donald Wilson, Jr., Broening Oberg Woods & Wilson, Phoenix, Arizona. Id. at vi.84 Counsel on the brief for all amicus parties (NACDL, Legal Ethics Professors, and Legal Ethics Practitioners) were Jerry Cox, Mount Vernon, KY, then-president and now past-president of NACDL, and Chair of the Kentucky Public Advocacy Commission; John Wesley Hall, Little Rock, AR, counsel of record; J. Vincent Aprile II, Lynch, Cox, Gilman & Goodman, P.S.C., Louisville, KY, counsel of record; Ellen Yaroshefsky, Cardozo School of Law, Yeshiva University New York, NY; and David Eldridge, Eldridge & Blakney, PC, Knoxville, TN. Id. All amicus briefs can be searched and found on the Kentucky Court of Justice website at http://apps.courts.ky.gov/supreme/sc_dockets.shtm, case number 2013-SC-000270.85 “Western Kentucky Federal Community Defender, Inc. . . . is the designated Federal Community Defender Organization for the United States District Court for the Western District of Kentucky pursuant to [the Criminal Justice Act,] 18 U.S.C. §3006A(g)(B).” In such capacity, the organization “represents the majority of defendants charged with felony and misdemeanor offenses in the United States District Court for the Western District of Kentucky.” Counsel on the brief were Scott T. Wendelsdorf and Frank W. Heft, Jr., Office of the Federal Defender, Louisville, KY. Brief for W. Ky. Cmty. Defender, Inc. as Amici Curiae Supporting Respondent, at i, U.S., ex rel. U.S. Attorneys for the E. & W. Dists. of Ky. v. Ky. Bar Ass’n,, 439 S.W.3d 136 (Ky. 2014).86 “The Innocence Network is an association of organizations dedicated to providing pro bono legal and investigative services to prisoners for whom post-conviction evidence can provide conclusive proof of innocence. The 63 current members of the Innocence Network represent hundreds of prisoners with innocence claims in all 50 states and the District of Columbia, as well as Canada, the United Kingdom, Australia, and New Zealand.” Counsel on the brief were Larry D. Simon, Louisville, KY, Thomas H. Golden, James C. Dugan and Jill K. Grant, Wiillkie Farr & Gallagher LLP, New York, NY, and Barry Scheck, Co-Director, The Innocence Project, Benjamin N. Cardozo School of Law, New York, NY. Brief of The Innocence Network as Amici Curiae Supporting Respondent, at 2. U.S., ex rel. U.S. Attorneys for the E. & W. Dists. of Ky. v. Ky. Bar Ass’n,, 439 S.W.3d 136 (Ky. 2014).87 ABA Resolution 113E, Adopted by the House of Delegates (Aug. 12-13, 2013), available at http://www.americanbar.org/groups/criminal_justice/policy/annual_2013.html.88 Id. Resolution 113E also contained an eight page report submitted by Criminal Justice Chair William Shepherd, which described and explained the history and purpose of the ABA’s adoption of this resolution. Resolution 113E and the attached report of the ABA Criminal Justice Section were filed by the KBA in the case as supplemental authority.89 See generally U.S., ex rel. U.S. Attorneys for the E. & W. Dists. of Ky. v. Ky. Bar Ass’n,, 439 S.W.3d 136 (Ky. 2014).90 See id.91 Id. at 141.92 Id.93 Id. at 142. (borrowing the term “remarkable” from Arizonans for Official English v. Ariz., 520 U.S. 43, 58 n.11 (1997)).94 Id.95 Id.96 Id. at 143 (citing 28 C.F.R. § 77.1(b)).97 Id.  (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230–31 (1947)).98 Id.99 Id. at 143 n.27 (emphasis in original).100 Id. at 144 (emphasis in original).101 Id. at 146.102 See id. at 146–51.103 Id. at 151.104 Id.105 Id.106 Id. (citing Robert H. Jackson, Full Faith and Credit—The Lawyer's Clause of the Constitution, 45 Colum. L. Rev. 1 (1945), available at http://www.roberthjackson.org/the-man/speeches-articles/speeches/speeches-by-robert-h-jackson/full-faith-and-credit//.107 Id. at 152 (quoting SCR 3.130-1.7 Cmt. 10).108 Id. (citations omitted).109 Id. at 151.110 Id. at 152 (emphasis in original). In so holding, the Supreme Court remained consistent with its earlier holding in Am. Ins. Ass’n v. Ky. Bar Ass’n, 917 S.W.2d 568, 573 (Ky. 1996), another case where a KBA advisory opinion was challenged. In that case, the court upheld KBA E-368 and stated that “the mere appearance of impropriety is just as egregious as any actual or real conflict.” Id. KBA E-368 advised that a lawyer may not ethically enter into a contract with a liability insurer in which the lawyer agrees to do all of the insurer’s defense work for a set fee. Ky. Bar Ass’n, Advisory Op. KBA E-368 (1994). KBA E-368 and the rules it interpreted acted as a “prophylactic device to eliminate the potential for a conflict of interest or the compromise of an attorney’s ethical and professional duties.” Am. Ins. Ass’n, 917 S.W.2d at 573. Am. Ins. Ass’n v. Ky. Bar Ass’n was decided after adoption of Kentucky’s version of the Model Rules of Professional Conduct (1990); therefore, “appearance of impropriety,” which was a bastion concept within the Model Code of Professional Responsibility, remains a valid ethical concern.111 See U.S., ex rel. U.S. Attorneys for the E. & W. Dists. of Ky. v. Ky. Bar Ass’n,, 439 S.W.3d 136, 155 (Ky. 2014).112 Id. at 156. (citation omitted).113 Id. (quoting J. Peter Voloski, Bargain for Justice or Face the Prison of Privileges? The Ethical Dilemma in Plea Bargain Waivers of Collateral Relief , 86 Temp. L. Rev. 429, 447 (2014).114 Id. at 157 (citation omitted).115 Id.116 Id. (citation omitted).117 Id. at 157–58.118 Lance Rogers, Court Decisions: Federal Prosecutors Bound by Ethics Rule Forbidding IAC Waivers in Plea Agreements, 95 Crim. L. Rep. (BNA) 613, (U.S. Aug. 27, 2014).119 Daniel Goyette, Kentucky Supreme Court Upholds Ethics Opinion that Prohibits Waiver of IAC as a Condition in Plea Agreements, Ky. Ass’n of Crim. Def. Lawyers Newsletter (KACDL), Sept. 2014, reprinted in National Association for Public Defense (NAPD) website, available at http://www.publicdefenders.us/?q=node/512.120 The policy change was announced via a “Memorandum for all Federal Prosecutors” issued on October 14, 2014 from James M. Cole, Deputy Attorney General. James M. Cole, Memorandum for All Federal Prosecutors, Wall St. J. (2014), http://online.wsj.com/public/resources/documents/IACmemo.pdf.121 Id.122 Id.123 Id.124 See Joe Palazzolo, Government Rethinks Waivers With Guilty Pleas: Defense Lawyers Say Giving Up Right to Appeal Presents Conflicts of Interest, Wall St. J. (Sept. 26, 2014, 12:19 PM), http://online.wsj.com/articles/u-s-government-seeks-to-curb-appeals-over-bad-legal-advice-1411745218.