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Ky. high court weighing plea deal ethics issue

September 19, 2013
Associated Press

LOUISVILLE, Ky. (AP) — A lawyer gives his client bad advice about a plea agreement, resulting in the defendant being deported or spending more time in prison than expected before being parole eligible.

If the Kentucky Supreme Court agrees with federal prosecutors, that defendant won't be able to later appeal his conviction because of the lawyer's bad advice.

The Kentucky Supreme Court is weighing a request by the U.S. attorneys in Louisville and Lexington to overturn a Kentucky Bar Association rule detailing what may be included in plea agreements.

The bar issued an ethics advisory opinion in November banning defense attorneys from advising a client about a plea agreement requiring them to waive their right to challenge the attorney's performance at a later date. In the same opinion, the Bar ruled that prosecutors may not propose a plea agreement that requires someone to waive the right to attack a defense attorney's performance on appeal.

In Kentucky, ethics opinions approved by the high court are binding on all attorneys in the state.

The issue has arisen in Florida, Arkansas, Virginia, Florida and Alabama. In Arkansas, defendants can waive the right to appeal an attorney's performance. Others states, including Florida, Alabama and Virginia take the opposite stance.

Absent from oral arguments on Thursday were any of Kentucky's commonwealth attorneys, who did not take a public stand in the ethics issue and don't include such waivers in plea agreements.

Assistant U.S. Attorney Terry Cushing said the opinion could affect the plea negotiation process.

"There's a give and take in the plea negotiation process," Cushing told the justices in a rare session at the University of Louisville Brandies School of Law. "The ultimate goal is truth and justice."

Defense attorneys told the court that including the provision in a plea agreement forces a defense lawyer into a conflict of interest — he has to put his own reputation against the needs of his client.

"We are the guardians of the client," National Association of Criminal Defense Attorneys past president John Wesley Hall told the justices. "We're here to protect their interest."

The justices seemed puzzled by the stance of the federal prosecutors. Repeatedly, the jurists questioned the need for the waiver and whether an attorney can be aware of their mistakes at the time a plea agreement is reached.

Cushing told the justices that allowing later attacks on the performance of an attorney merely prolongs cases and hurts victims and their families.

"It's about finality," Cushing said. "Victims of crime have gone through tremendous trauma when these things go through the courts."

Justice Daniel Venters said there is generally no way for a defendant to know if the attorney made an error until much later.

"It's always hindsight in terms of defendants," Venters said.

Justice Lisabeth Hughes Abramson said all justices want to see cases closed, but they must be closed properly.

"You're asking us to accept the lawyer who is singularly unaware of his own lack of due diligence to be the guardian of the defendant's rights," Abramson said.

The case comes three years after the U.S. Supreme Court overturned Kentucky's high court in a case that hinged on an attorney's deficient advice. In that case, truck driver Jose Padilla wasn't told he would face deportation if he pleaded guilty to hauling marijuana in the back of his truck. The U.S. Supreme Court concluded that the lack of due diligence by Padilla's attorney affected the plea and Padilla's claim of ineffective assistance of counsel was valid.

Justice Will T. Scott noted that if the waivers had been in place in Padilla's case, he would have gone to prison and been deported based on bad advice.

"In cases where it matters, it really matters," Abramson said.


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