Supreme Court Case Focuses on Lawyers' Obligations to Clients

By Robert Barnes
Washington Post Staff Writer
Wednesday, October 14, 2009

California truck driver José Padilla was considering whether to plead guilty to trafficking in marijuana, but first he had a question for his lawyer: Would the plea affect his status as a legal permanent resident?

Padilla, a native of Honduras, had been in the United States almost 40 years and had served in the Army during the Vietnam War. (He shares a name with, but is not related to, the onetime "enemy combatant" convicted on terrorism charges.) He said his lawyer told him that he did not have to worry about immigration status because he had been in the country so long.

So Padilla pleaded guilty -- and found out his lawyer was wrong.

Padilla's plea to an aggravated felony left him virtually no defense to deportation once his jail term ends. His new attorney was at the Supreme Court on Tuesday arguing that the first lawyer's advice deprived Padilla of his constitutional right to effective counsel and meant he should be able to withdraw the plea.

The question before the court goes to what kind of advice a lawyer must provide someone charged with a crime. The Supreme Court in Kentucky -- where Padilla was arrested -- said a lawyer is required only to advise his or her client about the direct consequences of a guilty plea and not collateral issues, such as how it would affect immigration status.

Padilla's lawyers argued that such advice is necessary to ensuring that a defendant makes an informed decision about whether to enter such a plea.

The U.S. government took a middle ground. It agreed with Kentucky that the lawyer has no duty beyond informing of the consequences of the criminal case. But it also said that if the lawyer decides to provide advice, it cannot be "misadvice" -- the wrong information that Padilla alleges he received.

The case is important because Congress in recent years has increased the number of crimes for which deportation is mandatory, so the nation's nearly 13 million legal permanent residents, such as Padilla, are more vulnerable to deportation than they might think.

Justice Ruth Bader Ginsburg said the changes in the law are "nothing mysterious. . . . So why wouldn't a lawyer whose client is an alien have an obligation, when there is an aggravated felony as the charge, to say: 'This will be the consequence?' "

Kentucky Assistant Attorney General Wm. Robert Long Jr. replied that it might be well for the lawyer to do so, but that it is not part of the Constitution's requirement of effective assistance of counsel.

Justice Sonia Sotomayor seemed to agree with Ginsburg. She said the threat of deportation was an important component of a defendant's decision on whether to go to trial and risk a longer sentence, or plead guilty to a charge that would automatically send him back to a place where he "might starve to death."

But other justices worried that it would be impossible to limit the issue to deportation -- a tack that Padilla's attorney Stephen B. Kinnaird suggested was one way to narrowly decide the case.

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