What sets us lawyers apart from computers or services like LegalZoom is our ability to counsel clients and help them make decisions. Counseling clients is the very essence of what we do as lawyers — so much so that failure to advise clients on obvious consequences of a decision to plead guilty — such as deportation — is ineffective assistance of counsel, at least according to yesterday’s Supreme Court ruling in Padilla v. Kentucky reported in New York Times.
Defendant Padilla, a Honduras native who lived in the U.S. for forty years with permanent resident status was charged with possession of 1000 pounds of marijuana. Padilla’s lawyer negotiated a plea arrangement under which Padilla would serve five years. But in response to Padilla’s inquiry about whether acceptance of the plea would result in deportation, Padilla’s lawyer incorrectly advised that the plea would have no effect. Turned out, Padilla’s lawyer was wrong, and Padilla appealed on ineffective assistance of counsel grounds, arguing that he would never have accepted the plea agreement if he’d been aware of the consequences.
In a majority decision written by Justice Stevens, the court held that in cases where the consequences of a guilty plea are “clear and succinct,” a lawyer must explain them to the defendant. Alito and Roberts concurred in the result, but felt that the majority’s test would impose a duty on lawyers to advise of a litany of possible, even remote consequences for every crime. Instead, Alito and Roberts found that an attorney provides ineffective assistance where, as in Padilla’s case, he offers inaccurate information in response to a client inquiry.
Though civil lawyers aren’t held to the Sixth Amendment ineffective assistance of counsel standard, Padilla still offers a valuable lesson. Clients’ decisions have consequences for them, and clients pay us lawyers to explain what those consequences are. Moreover, they rely on our explanation of those consequences. When we lawyers fail to ask the right questions or understand enough about an area of law to advise clients about all of the potential consequences of their decisions, we may not be ineffective in the technical, Sixth Amendment sense, but we haven’t done our job either.
Update: This story is important for solos who practice criminal law which is why I reported it (though in the bigger picture, I think that it also may have some relevance to unbundling, specifically, how far we can limit our scope of representation and avoid advice on collateral issues without betraying our ethical duties). If you want the real analysis of the implications of Padilla for criminal lawyers, read Greenfield at Simple Justice. If you’ve posted thoughts on the case, please share them in the comment section.