When it comes to informing clients of the possible consequences of a criminal conviction, what obligations do defense lawyers have outside the realm of the strictly criminal? That is one of the questions raised by a decision the U.S. Supreme Court handed down last year.
In Padilla v. Kentucky, the court found that a defense lawyer’s failure to advise a client that a guilty plea would mean deportation rose to the level of “constitutionally deficient” representation.
It’s clear that failing to inform clients of possibly serious implications to their immigration status falls under the category of deficient representation, said Monroe County Public Defender Tim Donaher. Now the question is what else qualifies.
“The criminal defense bar, to be honest, is scrambling,” Donaher said. Prior to Padilla, there was a general understanding that the consequences of a conviction could be divided into two categories; direct and collateral, he said.
“Often defendants have lots of issues growing out of their criminal convictions,” said Bruce Green, a Fordham University School of Law professor and member of a recently created American Bar Association task force dedicated to examining the consequences of Padilla on the legal profession. Those consequences may range broadly, including liability in civil lawsuits, child custody, being barred from certain professions, loss of public housing, and loss of student loans, he said.
“After Padilla, courts have been looking into what other kinds of information you have to give,” Green said.
Citing Padilla, for example, an Alaska appeals court ruled recently that a defendant received ineffective representation after he had been told by counsel that a no-contest plea in an assault case could not be used against him a civil lawsuit.
The new ABA task force will examine the specific obligations created by the Padilla case and also seek to establish best-practice policies to deal with them, Green said.
It has yet to be determined whether the Padilla decision can be applied to cases retroactively or only to cases going forward, said Joanne Macri of the New York State Defender’s Association Criminal Defense Immigration Project. At least one recent case has given her organization hope that it is the latter, she said. “We think that we are going to see it work it’s way up the court,” she said.
So how can lawyers adapt themselves to the new state of affairs going forward?
Depending on the size of the firm or agency, and the resources available to a given lawyer working a case, there may be several options.
Criminal defense lawyers might try widening the scope of their practice beyond criminal law, or make referrals to, and establish relationships with lawyers specializing in other areas, Green said.
Macri’s organization has established a hotline for criminal defense attorneys working immigration-related cases and regularly hosts training sessions across the state.
In cases where the resources are available, having an in-house expert on hand can also be valuable, said Donaher. Even per Padilla, the Monroe County Public Defender’s Office Chief of Appeals had been trained in immigration law and often serves as a resource for the agency’s other lawyers, he said.