Is a criminal defense attorney required to advise his or her immigrant clients of the immigration consequences of a plea agreement or conviction? According to the U.S. Supreme Court, the answer is a definite yes.
In its 2010 decision Padilla v. Kentucky, the Supreme Court made it clear that criminal defense attorneys have an affirmative duty to advise their immigrant clients of the consequences, both direct and collateral, of a plea or conviction (see http://www.supremecourt.gov/opinions/09pdf/08-651.pdf). Prior to Padilla, the extent of a criminal defense attorney’s duties had arguably been unclear, especially on a national level. In some states, such as Colorado, the failure to advise a noncitizen criminal defendant of the negative consequences of a criminal plea or conviction was considered ineffective assistance of counsel. (see People v. Pozo at http://www.cobar.org/opinions/opinion.cfm?opinionid=7966&courtid=1 ) The Padilla decision not only solidified the U.S. Supreme Court’s position imposing said duty on all criminal defense attorneys under the Sixth Amendment, but even broadened that responsibility to advise the client even when the immigration consequences are not completely clear, or “ambiguous” as described by the Court. Specifically, when the law is clear that the criminal plea or conviction will result in a conviction, the Padilla decision holds that the defense attorney must advise the client of the immigration consequences. When the immigration consequences of a conviction or please are unclear or ambiguous, the attorney must advise that deportation may result. Furthermore, Padilla held that the criminal defense attorney is obligated to provide some sort of immigration advice regarding the consequences of a plea or conviction. In other words, the attorney cannot escape the duty by simply remaining silent about the immigration consequences.
Impact of Padilla on Criminal Defense Attorneys
The possibility of being held responsible for failing to advise the immigrant client of the immigration consequences of a conviction or plea is harsh. A finding of ineffective assistance of counsel can lead to malpractice claims, bar complaints/grievances before the attorney disciplinary authorities, damage to reputation, and the inevitable spike in malpractice insurance premiums that follows.
Because most criminal defense attorneys are not immigration experts, they would be wise to seek the assistance of an immigration attorney in all cases in which they represent a non-citizen defendant. Just as a wise divorce attorney might seek outside counsel for complex tax issues, criminal defense lawyers would be wise to seek the assistance of a competent immigration attorney to provide advice regarding the immigration consequences of a criminal plea or conviction.