The Risk Manager, Spring 2006

By Retired Judge Stan Billingsley

Editor’s Note: This article is one of a series that has agreed to provide for Lawyers Mutual’s newsletter as a bar service. provides Internet legal research service specializing in Kentucky law. For more about LawReader go to our website.

Two recent Kentucky Court of Appeals cases concern potential violations of Supreme Court Rule 3.130(1.1) that requires an attorney to be competent in the representation of his client. The rule requires that:

“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

Keep Up with Statutory Law: An attorney must fully understand the statute under which his client is charged before counseling a guilty plea. In the unpublished case of Allen v. Commonwealth an attorney counseled a guilty plea to a sex offense felony based on a statute that did not apply to his client. The client’s conduct was governed by a version of the statute in effect at the time of the offense. At that time, the offense was a misdemeanor. Under the newly amended provisions of KRS 17.510, the increased penalties only applied to persons required to register as sexual offenders after the date of the amendment. The defendant was not accurately advised on this point. The Court opined:

“A competent attorney would undoubtedly research the changes in the amended statute, especially considering the increased penalty, along with Allen’s prior registration under the statute. Counsel’s failure to investigate the status of the law, as applicable to Allen, constitutes error falling outside the range of competent professional assistance.”

Keep Up with Immigration Law Too: The Court of Appeals in Padilla v. Commonwealth found that an immigrant defendant specifically asked his attorney if a guilty plea to the pending charge would cause him to be deported. He was advised that the he “did not have to worry about immigration status since he had been in the country so long”. This advice was incorrect, but ironically worked to the client’s advantage, but not to the lawyer’s. In Commonwealth v. Fuartado (170 S.W.3d 384 Ky. 2005) the Kentucky Supreme Court held that a defendant is not entitled to post-conviction relief based on failure of trial counsel to investigate or advise him of possible deportation consequences of a plea. The Fuartado case was distinguished in Padilla as not depriving Padilla of post-conviction relief because he had made a specific inquiry about the deportation risk. The Court reasoned that:

“In contrast to an omission in advising a client of the collateral consequences of a plea, an affirmative act of “gross misadvice” relating to collateral matters can justify post-conviction relief. Sparks v. Sowders, 852 F.2d 882, 885 (6th Cir.1988).”

To avoid embarrassing case decision depictions of your lack of competence and the potential malpractice claims that can attend them you must know what you are doing. If you aren’t knowledgeable in an area of the law such as immigration law, or if you aren’t up-to-date on criminal law, you must either take the time to review the relevant law, associate with a more knowledgeable lawyer, or refer your client to a lawyer who is competent to represent the client.