The Right to (Competent) Counsel
Published October 18, 2009 @ 10:29AM PT

The U.S. Supreme Court heard arguments this week in the case of Jose Padilla, a legal U.S. resident originally from Honduras who was challenging a guilty plea in a drug case because his attorney incorrectly told him the guilty plea couldn't lead to deportation.
In oral arguments, the court's right-wingers immediately challenged Padilla's attorney on whether a decision in favor of Padilla might open what the sage Antonin Scalia called a "Pandora's box" of burdens on attorneys to make clients aware of every possible outcome of a conviction -- from child custody to driver's license. Padilla's advocate before the Supreme Court, Stephen Kinnaird, responded - correctly, I think -- that deportation is one of few ancillary punishments "so severe and so material in a high number of cases" that should qualify for special consideration. Also, it wasn't just that Padilla's original lawyer failed to advise him of the impact. Padilla asked, and the lawyer advised him incorrectly. He pled guilty based on false information.
This is a critical issue, because deportation adds an extra layer of punishment in many thousands of convictions each year, and the legal issues around this double-sentence have not been fully explored. An editorial yesterday in the LA Times agrees with Kinnaird:
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.
Here's more from SCOTUSblog on Padilla v. Commonwealth of Kentucky.
Photo by laura padgett
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Comments (6)
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Jeez Matt, most Americans can't even obtain competent council. Immigration law is a slippery slope, but just because an immigration attorney loses a case, it doesn't mean they are incompetent. Most lose more than they win, even the good ones.
Posted by L.S. hope on 10/19/2009 @ 12:20AM PT
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Agreed Matt, deportation is one of the few ancillary punishments that a "competent attorney" should be able to give his deportable client correct legal advice about. BUT, the minimum an attorney should be able to advise about, given the state of the immigration laws in this country, is a guilty plea to a criminal offense is a certain deportation order.
Unfortunately, the plethora of SCOTUS cases that address the 6th Amendment right to counsel leave a lot to be desired on compentency definitions for attorneys. The competency requirements, under SCOTUS rules and definitions, requires little more than a breathing body, and that body does NOT have to be awake during the trial.
Posted by mark schmanke on 10/19/2009 @ 04:07AM PT
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It's easy to harsh on the bottom of the attorneys who try to slog along under these conditions, but the remedy is clear if we have to do it (i.e. pay to do it). Level the playing field. Mandate public defenders or Legal Aid attorneys get paid the same as the prosecutors or the prevailing local hourly rate for private criminal defenders for non-indigent defendants.
Perhaps incentivize defenders by paying a success fee bonus if a case which goes to trial and there is no conviction results in a cash bonus (like many private sector litigants). Subject their vouchers for third-party quality control and establish guidelines for similar cases so the taxpayers are protected and the bills aren't padded. Dismiss defenders who game the system or who aren't deemed effective and zealous by their clients.
Adopt some of these reforms, level the playing field (as it should be, that's called "justice" and a "fair trial") and you won't see harried attorneys meeting their clients in jail or the court hallway for the first time meeting 15 minutes before the hearing while juggling a dozen other manila file folders.
Posted by Jack Lebowitz on 10/25/2009 @ 01:51PM PT
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Unfortunately Jack, I agree with you. But, the governments, federal, state and local do not have the necessary money to provide "Public Defenders" who are not juggling a dozen other manila file folders. The Federal PD's office in Chicago is a perfect example, they juggle a hundred or so clients and the court's are therefore required to appoint outside counsel, who, recieving a 1,500.00 cap on defending a case, be it murder or deportation proceedings, do not have the private money to provide a competant defense and who are more concerned with defending their paying clients at 250.00 an hour (ct time) than formulating a complete defense for some poor indigent, who in some cases, should not be convicted...or as in this case, deported, or in the following: http://immigration.change.org/actions/view/grant_justice_and_stop_the_deportation_of_julio_maldonado_and_denis_calderon
Posted by mark schmanke on 10/28/2009 @ 12:03PM PT
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I believe it is their ethical responsibility to provide all clients the same competant defense,They know this going into law when they take their oath, regardless of pay,networking with contacts on previous cases or a nationwide data base of information & a donation of services required for those who meet a indigent criteria can help give the same equal treatment, it is the attorneys responsibility to make it happen, they should do the extra work, we all have to pay our dues
Posted by Sherilyn Yeley on 11/05/2009 @ 08:23AM PT
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Yah, well say what you will about "they took the job, etc.", but around here, they pay less than $40K/yr for public defenders/legal aid, and still work them to death with a caseload they cannot control (unless they revolt and go to court when they are overwhelmed beyond breaking).
I guess it's easy for others to say that "volunteers" and low-paid people doing "pro bono" should suck it up and do the same job as the better paid people on the other side, but I'm not so heartless. You get what you pay for. Sometimes volunteers get invaluable experience and training from their "on the job training", so I guess it works for them. Having lots of experience, it doesn't work at me at all.
I'm willing to do "semi-pro" bono and charge no more per hour than my plumber or car mechanic wants from me ($80/hr), not the $200+/hr I used to get in private practice. But pay people a living wage for whatever they do, and that includes public employees like teachers and lawyers.
I don't get why prosecutors and public defenders aren't on the exact same pay scale anyway (not that young prosecutors don't make small salaries when they are assistants just starting out). Why do we expect public defenders themselves to subsidize this social (constitutionally required) function?
And if we're talking the "pro bono" as done traditionally by bigname law firms as associate training and goodwill marketing, ask yourself how sustainable these programs are in recessionary times when these firms are laying off staff and focusing more on the bottom line of milking their corporate and banking clients.
There is no free lunch, especially when you are looking for someone else to provide it gratis.
Posted by Jack Lebowitz on 11/05/2009 @ 12:02PM PT
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