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Right to counsel should include competence

When a guilty plea could mean deportation, a lawyer should be able to give his client good advice.

October 17, 2009

The right to counsel is one of the glories of this nation's legal system, but it means little if a client can't depend on his lawyer to provide an accurate account of his legal options. This week, the U.S. Supreme Court confronted a compelling case of what can happen when a defendant relies on inaccurate legal advice. Jose Padilla, a legal U.S. resident and a Vietnam veteran, asked the justices to overturn his guilty plea to a drug charge because his lawyer had misled him about whether the plea would lead to his deportation to his native Honduras.

Instead of seeing Padilla's predicament as a clear violation of the 6th Amendment's right to counsel, several justices at an oral argument agonized over whether a ruling in his favor would open what Justice Antonin Scalia called a "Pandora's box" of new burdens on lawyers.

"What about advice on whether pleading guilty would ... cause him to lose custody of his children?" Scalia asked Padilla's lawyer. Chief Justice John G. Roberts Jr. wondered if a rule dealing with inaccurate legal advice would cover a situation in which a lawyer urged his client to testify, even though taking the stand might lead to losing his job or a government contract. Justice Samuel A. Alito Jr. asked whether a defense attorney must also advise a client that a guilty plea could lead to the loss of his driver's license or his right to vote.

We hate to rain on this parade of horribles, but Padilla's case need not lead to a situation in which every lawyer would have to educate himself about every conceivable consequence of a decision by his client to plead guilty or testify in his own behalf. Padilla's lawyer proposed a much more modest and manageable approach. Deportation, he said, is among the few side effects of a guilty plea that is "so severe and so material in a high number of cases" that inaccurate advice about it should qualify as ineffective assistance of counsel.

If the justices are still hesitant about expanding the reach of the 6th Amendment, they could limit their ruling to situations, such as Padilla's, in which a defendant asks his lawyer a question about the immigration consequences of a guilty plea and the attorney provides an inaccurate answer. That solution wouldn't require every lawyer to research the immigration consequences of a guilty plea. But given the fact that thousands of immigrants are deported each year for criminal convictions, we would suggest a broader rule: A lawyer who represents an immigrant subject to possible deportation should have an affirmative obligation to know, and to tell his client, what the law is.

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