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Defense counsel’s duty to warn about … everything?

WASHINGTON — Last term’s U.S. Supreme Court ruling in Padilla v. Kentucky placed a constitutional duty upon defense attorneys to advise clients if a plea carries a risk of deportation.

But now, state and federal courts are applying the ruling’s Sixth Amendment duty to warn to a host of collateral areas outside the immigration context.

“One of the biggest questions raised by the Padilla case is: How far does it go?” said Margaret Colgate Love, a Washington solo practitioner who sits on the American Bar Association Commission on Effective Criminal Sanctions.

Lower courts are citing the opinion in challenges to plea agreements that have resulted in a number of collateral consequences unforeseen by defendants — including the loss of public housing, ineligibility to vote, adverse financial consequences, the loss of adoption and child custody rights, the loss of a driver’s license and even the inability to obtain a professional license in a regulated field.

The situation has left defense attorneys unsure of just how far their constitutional obligation to warn clients goes.

Collateral damage

In his opinion in Padilla, Justice John Paul Stevens did not close the door to extending the constitutional requirement to collateral consequences beyond the deportation context.

“We … have never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required” under Strickland v. Washington, Stevens wrote. “Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation.”

Although Justice Samuel Alito concurred in the judgment, he warned that expanding the holding outside the deportation context would be a “dramatic expansion of the scope of criminal defense counsel’s duties” that could lead to “a major upheaval in Sixth Amendment law.”

Citing Padilla

Lower courts, noting that the Supreme Court did not distinguish between direct and collateral consequences in the Sixth Amendment context in Padilla, seem to be erring on the side of expanding the right.

In September, the 11th Circuit cited Padilla in its per curiam decision in Bauder v. Department of Corrections State of Florida, affirming a district court ruling that allowed a defendant to take back a plea that was based on his attorney’s incorrect advice about the possibility of being civilly committed.

Love pointed out that tossing out a plea deal based on defense counsel’s bad advice is by no means something new. What is new, she said, is that the circuits are starting to turn to Padilla as the basis for doing so.

“The Bauder case, to be sure, was not a revolution,” Love said. “It isn’t particularly new except that the Court of Appeals cited Padilla. [So] you get the sense that Padilla is going to get a workout.”

State courts are following suit as well. For example, in June the Superior Court of Pennsylvania cited Padilla in Commonwealth of Pennsylvania v. Abraham, ruling that an attorney gave ineffective assistance when he failed to warn a client that a plea deal would result in the loss of his pension benefits under the Public Employee Pension Forfeiture Act.

“Viewed in the light of Padilla, the loss of the pension is automatic and inevitable, the stakes are high and the consequences are succinct, clear and distinct,” the court said. “Because of the automatic nature of forfeiture, the punitive nature of the consequence and the fact that only criminal behavior triggers forfeiture, the application of [the Act] is, like deportation, intimately connected to the criminal process.”

List of consequences

“Collateral consequences have always been a consideration” of defense attorneys, said Gabriel “Jack” Chin, a professor at the University of Arizona James E. Rogers College of Law in Tucson, speaking at a recent American Bar Association-hosted panel on criminal law in Washington. “Padilla may be a move toward constitutionalizing” the obligations to warn about them.

A project by the ABA’s Uniform Collateral Law Commission to create a searchable master list of potential collateral consequences of plea agreements is under way. Now for the bad news: when the project is completed, the total number of collateral consequences is expected to be as high as 60,000, Chin said.

For example, in the Adam Walsh Child Protection and Safety Act, there is a provision prohibiting anyone convicted under the statute from filing a visa petition on behalf of a family member, spouse or fiancé.

“So Padilla isn’t just about talking to your non-citizen clients,” said Chicago-based immigration and criminal law solo practitioner Sara Elizabeth Dill at the ABA event. “It’s about talking to your citizen clients about the consequences as well.”

That means defense lawyers who have been negotiating plea deals for decades may suddenly find themselves in need of a crash course in all the bad things that could happen to their clients should they plead guilty to an offense.

Putting it in writing

Prosecutors, also noting the expansion of Padilla’s application, are taking matters into their own hands to make sure the plea deals they strike have staying power, no matter what a defense attorney’s advice is.

“Collateral consequences are going to be a bigger part of the conversation when a party engages in plea discussions,” Assistant U.S. Attorney Robert Okun said at the ABA panel.

After Padilla, Okun said, prosecutors began putting express language in plea agreements, such as “I understand that if I plead guilty there will be immigration consequences” or “I understand that I will be required to register as a sex offender.”

As for defense attorneys, until the searchable database of collateral consequences is completed, they will have to search for possible consequences of a guilty plea on their own — and that task is not always easy.

In the immigration context, at least, “there are a lot of resources” provided by immigration law organizations, Love said. But when it comes to other types of clients, resources may be tougher to come by.

“There are no advocacy groups for sex offenders,” Love said.