Tony Mauro, The National Law Journal
March 31, 2010

Hoff Curtis' Richard T.
Cassidy

Paul Hastings' Stephen B.
Kinnaird

In a decision that one justice called "a major upheaval in Sixth Amendment law," the U.S. Supreme Court on Wednesday ruled that lawyers have a constitutional obligation to advise clients of the collateral deportation consequences of a guilty plea in a criminal case.

"It is our responsibility under the Constitution to ensure that no criminal defendant — whether a citizen or not — is left to the mercies of incompetent counsel," wrote Justice John Paul Stevens for the 7-2 majority.

Although the ruling in Padilla v. Kentucky is based on the seriousness of deportation as, in effect, a second penalty that results from a guilty plea, the impact of the decision could in future cases strengthen the duty of lawyers to advise clients about serious collateral consequences of guilty pleas in other contexts, such as sex offender status. In dissent, Justice Antonin Scalia said the defense bar will likely try to create "ever-expanding categories of plea-invalidating misadvice."

The ruling was applauded by bar leaders who have focused attention on the professional obligation of lawyers to alert clients about the growing array of consequences that flow from pleading or being found guilty.

Stevens cited "the weight of prevailing professional norms" in finding that lawyers must give accurate advice about deportation consequences of criminal proceedings as part of the Sixth Amendment right to counsel, especially when the immigration law is "succinct, clear, and explicit."

"This is really a historic decision," said Stephen Kinnaird, a Washington partner at Paul, Hastings, Janofsky & Walker who represented the defendant in the case. For immigrants and for lawyers, he added, "this is a big deal." Criminal defense lawyers, he said, "will have to at least understand the basic landscape of immigration law. I expect to see the bar step up to this task."

Benita Jain, co-director of the Immigrant Defense Project, said Wednesday, "This is one of the biggest ineffective assistance of counsel rulings in years." It will be of tremendous help, she said, to immigrants who often are under "strong pressure to plead guilty in criminal cases. "Every day we talk to people who plead guilty and had no idea that deportation was a consequence." The National Association of Criminal Defense Lawyers also applauded the decision, which it said will "assure the integrity" of plea negotiations in drug cases.

Jain and other immigration rights advocates were coincidentally in Court when Stevens announced the decision. They were there to attend oral argument in another immigration case before the justices — one that involved a Mexican man who was ordered deported after pleading guilty to two drug misdemeanors.

The case decided Wednesday involved Jose Padilla, a legal permanent resident from Honduras (unrelated to the Jose Padilla involved in the 2004 Rumsfeld v. Padilla military-detention case.) Padilla pleaded guilty to felony drug distribution charges in Kentucky after his lawyer advised him not to worry about deportation because he had lived in the United States for 40 years. The erroneous advice exposed him to near-certain deportation, and he claimed ineffective assistance of counsel. The Kentucky Supreme Court ruled against him, finding that the guarantee of effective assistance of counsel was not violated because deportation was a collateral, rather than direct, consequence of his conviction.

Stevens said the high court's leading precedent in the area, Strickland v. Washington, did not distinguish between direct and collateral consequences in defining the scope of a lawyer's duty. Failure to advise properly about the likelihood of deportation, Stevens said, is "not categorically removed" from the ambit of the constitutional right to counsel, Stevens wrote.

Although laws regarding deportation are generally straightforward, Stevens said that, in other immigration matters that are less clear, "the duty of the private practitioner...is more limited." In those cases, Stevens said, the defense lawyer "need do no more" than advise the client of the possibility of adverse immigration consequences.

The ruling, while helpful to Padilla, stopped short of reversing his conviction. Stevens said the second prong of the Strickland decision — whether or not the ineffective assistance actually prejudiced the outcome of his trial — had not been ruled on in the courts below, and the case was sent back for further proceedings. Kinnaird said Padilla's deportation proceedings have been on hold pending the outcome of his Supreme Court case.

"Today's ruling will elevate the profile of the problem" of collateral consequences, said Richard Cassidy of Hoff, Curtis, Pacht, Cassidy, Frame & Katims in Burlington, Vt. Cassidy headed an effort by the Uniform Law Commission that drafted a model state law for collecting and disseminating information about collateral consequences for the benefit of defendants. The American Bar Association endorsed the model law in February and is also working to compile the data under a federal grant program. "The ruling will help to persuade the states that we have to understand this problem," Cassidy said.

Justice Samuel Alito Jr. wrote a concurrence joined by Chief Justice John Roberts Jr. calling the ruling a Sixth Amendment upheaval and arguing for a more limited obligation on the part of lawyers. Stressing the complexity of immigration law, Alito said criminal defense lawyers should only have to advise clients of possible adverse consequences and tell them to seek the help of immigration lawyers.

Justice Antonin Scalia, joined by Justice Clarence Thomas, wrote a sharp dissent, arguing that the majority had used "a sledge where a tack hammer is needed." Scalia said that by constitutionalizing the problem, the majority will foreclose a more targeted legislative solution, without producing "permanent and legislatively irreparable overkill."