U.S. Supreme Court 03-30-10
Read the full article for details about the following new cases:
- Immigration - Duty to Advise Clients
The Supreme Court ruled today that a failure to properly advise a client of the immigration consequences of a guilty plea can be Constitutionally inadequate representation.
I think the lesson of this case (and others) is fairly clear. When it comes to immigration consequences, never tell your client "don't worry about it". In this case, the lawyer told his client that it was okay to plead guilty to hauling 1000 pounds of marijuana because he'd been in the country so long the Feds would never deport him. Doh! When it comes to immigration, a non-citizen client should always worry about it. The best we can do is attempt to minimize the potential consequences by knowing the basic law, consulting with an immigration attorney where appropriate and telling our clients to hire an immigration attorney if they can. But even if we get the exact right answer right now, the law (or the A.G.s interpretation of the law) might change overnight. In any case, here's the actual ruling:
There will, however, undoubtedly be numerous situations in which the deportation consequences of a plea are unclear. In those cases, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry adverse immigration consequences. But when the deportation consequence is truly clear, as it was here, the duty to give correct advice is equally clear.
I.e., in a really clear case, you're expected to know about deportation. In a less clear case, you only need to advise your client that the conviction may have immigration consequences. It's good practice to know more, but it's not Constitutionally insufficient.
The name of the case is Jose Padilla v. Kentucky. But not that Jose Padilla.
Postscript: Via the always brilliant Sentencing Law and Policy, perhaps the Padilla opinion is more far reaching than I imply above. I'm quite sure I'm right about the immigration aspect of it. And, Stevens' opinion says that deportation is a unique area of the law. BUT, Alito's concurrence, which says this is a dramatic and major upheaval of the Sixth Amendment, seems to imply that defense attorneys have a duty to know and advise clients regarding all collateral consequences of a conviction. Frankly, it's just good practice. So I have no problem with such a rule. But it would be far reaching. Gun rights, voting rights, Federal loans, sex offender registration, eligibility for enhanced sentences like Repeat Property Offender or the Federal Career Criminal statute, Social Security, expungement, driving privileges, etc., etc.. There are a lot of collateral consequences that have built up over the last couple decades.