Kentucky Supreme Court upholds ethics rule on lawyer advice, plea agreements

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LOUISVILLE, Kentucky — Prosecutors in Kentucky will no longer be able to require defendants as part of a plea agreement to waive their right to appeal bad advice from an attorney after the Kentucky Supreme Court on Thursday banned the practice.

A defendant sometimes has the right to claim his lawyer's advice was bad. The rule upheld by the high court bars prosecutors from requiring defendants to waive that appeal right and a defense attorney from advising clients to accept the clause.

The contentious issue put the justices in the unusual position of having to decide whether the U.S. attorneys in Louisville and Lexington would be able to include the clause in plea agreements.

The Kentucky Bar Association issued an ethics opinion in November that told defense attorneys and prosecutors to not include the waiver clause in plea agreements.

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

"Among state bar associations, there is a growing consensus that the use of ... waivers in plea agreements is unethical behavior," Justice John D. Minton wrote for a unanimous court

The issue has arisen in 12 states, including Florida, Arkansas, Virginia, Florida and Alabama. In Arkansas, defendants can waive the right to appeal an attorney's performance. Two states have taken the opposite stance, but have recognized ethical concerns with including the appeal waivers.

"No other states have considered the issue," Minton noted.

Federal prosecutors sought to overturn the rule, saying it could hurt the plea negotiation process and prolong cases to the detriment of victims and their families.

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

"We know of no constitutional requirement, outside of simple fair play, applying to the prosecutor's role in the plea bargain process. In fact, it is a matter of prosecutorial grace that a defendant is even offered a plea bargain, terms aside," Minton wrote. "With no right to be offered a plea agreement, a defendant is no vested with a right requiring the inclusion of any particular terms in a plea agreement."

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.

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Follow Associated Press reporter Brett Barrouquere on Twitter: http://twitter.com/BBarrouquereAP

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