Is the role of the criminal defense lawyer changing in the wake of a Supreme Court decision that is imposing new obligations on lawyers to advise clients about the consequences of criminal convictions?
The American Bar Association's Criminal Justice Section this week established a task force aimed at answering that question and helping criminal defense lawyers understand and meet new responsibilities to clients stemming from the Supreme Court's March decision in Padilla v. Kentucky.
That ruling 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.
As we reported here and here, 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. Just last week, an Alaska appeals court, invoking Padilla, ruled 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.
Fordham University School of Law professor Bruce Green, chair of the ABA Criminal Justice Section, said the ABA has already collected data on the collateral consequences of criminal convictions that have and "extraordinary impact" on clients' lives. "Padilla raised the level of consciousness to a higher level," said 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. Padilla and the many writings and CLE programs it has inspired are influencing lawyers to do a better job as advisers -- even better than the constitutional minimum identified by the Court."
Green said the new task forced 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." 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."
The task force may also make policy recommendations to the ABA House of Delegates and contribute to a 2011 symposium on the changing scope of criminal practice.
Justine Luongo of the New York City Legal Aid Society is chairing the new task force. Other confirmed members include section chair Green and: Lisa Daugaard, deputy director of the Racial Disparity Projectof the Seattle Defender Association; April Frazier, community reentry coordinator of the Public Defender Service in D.C.; David Gonzalez, partner, Sumter & Gonzalez, LLP in Austin, Texas; Crystal Roland, attorney at Roland, Mahdavian PA, Miamia Shores, Florida; J. McGregor Smyth, attorney at the Bronx Defenders; and Mark Stephens, public defender, Knox County Public Defender’s Community Law Office.
The association has also posted online resource materials on the Padilla decision.