There are certain consequences of a plea that any attorney should know about. For example, if a defendant pleads guilty to a crime, they may go to jail even if the plea agreement doesn’t call for it…no surprise there..and of course any reliable criminal defense attorney will advise their client of this possibility. On the other hand, there are many collateral consequences of a guilty plea, particularly to a felony, that a lawyer may not think to inform the client of – for example the loss of voting rights, or the inability to qualify for certain social services such as public housing. Many, if not most, collateral consequences will not apply to all defendants in all cases, but a US Supreme Court decision issued in March has been making waves in several states in determining whether an attorney has provided constitutionally suffiient representation in cases where the attorney has failed to advise the client of certain collateral (and often civil) consequences that will result from their conviction. In Padilla v. Kentucky, the Supreme Court held that the attorney’s failure to advise a client of the deportation consequences of his plea and subsequent criminal conviction amounted to “constitutionally deficient” representation. Many courts are now extending this rule to cover other consequences, as mentioned above, such as child custody and social services.
In general these cases set a standard by which the criminal defense attorney must possess an understanding not only of the direct criminal consequences of a conviction, but also of the [perhaps] obscure civil consequences.
Because of the case law created as a result of Padilla, the American Bar Association has convened a committee to review the role and responsibilities of the defense attorney, and has created an excellent resource for attorneys that are faced with collateral consequence questions. A link to the ABA’s resource page can be accessed by clicking here. There is another good summary of the changes being investigated here.
For the most part this decision and its evolving progeny appears to raise the bar for criminal defense attorneys, and require us to expand our knowledge and broaden our legal awareness. Attorneys must always strive to ensure that their clients know the full consequences of any conviction, however the client must also be forthcoming with his or her attorneys. A client who fails to disclose important facts to their attorney, or is not honest with their attorney about their past or future, may face unforeseen consequences down the road.
Here are some excellent resources for attorneys (and clients) that may have questions about collateral consequences:
Reentry.net – a clearinghouse of information
Reentry.net Collateral Consequences Section – excellent references for attorneys
Samuel Breslin is an associate at Dreyer Boyajian LLP practicing in criminal defense, personal injury litigation, and general civil litigation.