ABA to Study Changing Role of Criminal Defense Lawyers Post-'Padilla'Bruce A. Green in New York Law Journal, December 27, 2010
by Tony Mauro and Daniel Wise
The question of whether the role of the criminal defense lawyer has been affected by the U.S. Supreme Court ruling in Padilla v. Kentucky, 08–651, will be the focus of a task force established last week by the American Bar Association's criminal justice section.
The goal is to explore the obligations on lawyers to advise clients about the consequences of criminal convictions and help criminal defense lawyers understand and meet those responsibilities.
In Padilla, the Court found that a defense lawyer's failure to advise a client that a guilty plea would have deportation consequences for the client amounted to "constitutionally deficient" representation.
The ruling has had repercussions not only for lawyers representing immigrants. It is being used in cases where guilty pleas have had consequences in other areas, including employment, child custody and housing. An Alaska appeals court, invoking Padilla, ruled recently that a prima facie case of ineffective assistance of counsel had been made by a client who had been told incorrectly by his lawyer that his no-contest plea in an assault case would not be used against him in a lawsuit for civil damages.
The new ABA task force will look not only at the specific obligations created by the Padilla decision and other rulings applying it, but also at the broader implications for the role of defense lawyers.
Bruce Green, a Fordham University School of Law professor and chair of the ABA's criminal justice section, said the bar group has already collected data on the collateral consequences of criminal convictions that have an "extraordinary impact" on clients' lives.
"Padilla raised the level of consciousness," said Mr. Green. "It has reminded lawyers that they must learn about, and advise clients about, the impact of a guilty plea on their immigration status and in other significant ways beyond sentencing."
Mr. Green said the new task force is needed "because clients need more than good advice about the consequences of a guilty plea. The task force will ask what else lawyers can do to assist criminal defendants with current civil legal problems or non-legal problems related to the criminal case."
Mr. Green added, "Criminal defense lawyers might help by broadening the scope of their representation beyond the criminal case or by making referrals to, and collaborating with, other professionals. The task force will study how lawyers and their offices address these situations, often in the face of time and resource limitations."
New York Practice
In New York City, both defenders and prosecutors said steps were taken, even pre-Padilla, to protect immigrant defendants from being deported as a consequence of a guilty plea.
Brooklyn District Attorney Charles J. Hynes is "very much aware" that unwarranted deportations can have an "enormous" adverse impact upon families in the borough's many immigrant communities, said Lance Ogiste, who is Mr. Hynes' counsel.
Where there is no indication that an immigrant defendant poses a danger to the community, Mr. Ogiste said, "if we can work out a disposition that will not affect the defendant's immigration status, we will definitely do it."
Since Padilla was decided on March 31, 2010, he added, the office has dealt with "a lot more" petitions to nullify convictions because the defendant had not been given any, or inaccurate, advice about how a plea would affect their immigration status. As long as immigrants can demonstrate that he did not receive advice that complies with Padilla, Mr. Ogiste said, the office will take the same approach as in ongoing cases in deciding whether to consent to lift a conviction.
Lisa Schreibersdorf, the head of the Brooklyn Defender Services, said the district attorney's office is "heartfelt about doing the right thing" on both counts—working out pleas in current cases and evaluating petitions for post-conviction relief under Criminal Procedure Law §440.
Ms. Schreibersdorf said that since October 2009, she has hired two immigration attorneys who are available to the office's lawyers to provide advice about the possible adverse immigration consequences of pleas.
Robin Steinberg, the executive director of the Bronx Defenders, said her office for many years has had four immigration attorneys available to advise its defense attorneys on immigration issues.
In some instances, she said, such as where a prosecutor makes a plea offer at arraignment, the office's lawyer needs accurate information immediately. The four immigration lawyers are scheduled to be on call for set periods, including night arraignments, she said.
Steven Banks, the attorney in chief of the Legal Aid Society, said his office also has a system for making expert immigration advice available to its attorneys in criminal courtrooms.
Legal Aid has designated each of the 20 lawyers in its civil immigration unit to handle inquiries from lawyers in a specific borough, he said. Post-Padilla, he added, all of Legal Aid's criminal defense lawyers have had one full day of immigration training as well as additional sessions in their offices.
The Manhattan District Attorney's Office has been distributing to defendants a written message urging them to consult with their attorneys about the consequences of a plea. The statement also lists crimes that federal immigration law defines as "deportable."
When New York City solicited new contract proposals from defender groups last February, it stipulated that only groups with the capacity to handle immigration issues would be awarded contracts.
Acting Supreme Court Justice Barry Kamins, the administrative judge in charge of criminal courts in Brooklyn, said he has ongoing discussions with the judges about the ramifications of Padilla, adding, "I know other administrative judges have done the same."
As for post-Padilla rulings in New York, Mr. Banks said, trial judges have been "generally" receptive to the argument that Padilla should be applied retroactively, but no appeals court has addressed the issue. No New York court so far has extended the Padilla right to accurate advice about immigration consequences to other areas such as whether a plea could put in jeopardy a defendant's right to remain in public housing.
The ABA task force is chaired by Justine Luongo of the Legal Aid Society. Other confirmed members include section chair Mr. Green and Ms. Steinberg of Bronx Defenders; Lisa Daugaard, deputy director of the Racial Disparity Project of the Seattle Defender Association; April Frazier, community re-entry coordinator of the Public Defender Service in Washington, D.C.; David Gonzalez, partner, Sumter & Gonzalez in Austin, Texas; Crystal Roland, attorney at Roland, Mahdavian, Miami Shores, Fla.; J. McGregor Smyth, attorney at the Bronx Defenders; and Mark Stephens, public defender, Knox County Public Defender's Community Law Office.