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Monday, March 14, 2011
By Michael Nichols
Categories: Michael J. Nichols
Why Would the Lawyer’s Desire to Avoid the Claim Not Be Enough?
© by Michael J. Nichols
The Michigan Supreme Court is considering whether to create a new court-rule for plea taking. The question is, will the Court ultimately put the responsibility on the judge or on the lawyers to make sure that the accused has been advised of the potential immigration consequences of a plea of guilty or no contest to a criminal charge? It comes in the wake of the United States Supreme Court ruling last year in Padilla v Kentucky, No 08-651, 2010 Lexis 2928. In Padilla, the conviction for Mr. Padilla was set aside when he established that his lawyer did not advise him of the fact that he would be deported if he was convicted for the crime charged and further, that he would not have plead guilty if he knew of that particular consequence.
One version of the rule would require the judge taking the plea to inquire of the accused if he and his lawyer have discussed the potential immigration consequences of the decision and ultimate conviction. This version is troubling because it opens the door to piercing the attorney-client privilege. It may be that it is just a crack but there is no doubt in my mind that the accused is being asked a question about what his lawyer told him and that is privileged information. The accused is also expected to help make the record that the lawyer advised him of the consequences, that he understands them and knowing those consequences he still wishes to go forward with a plea.
I can see why this is attractive: the accused cannot turn around and say “my lawyer was ineffective in advising me about the consequences of my conviction and because of that I should be able to turn around and withdraw my plea because I do not want to be deported.” However, the record is really not insulated from any and all attacks. What if the lawyer had no clue about the immigration consequences, advised the client after throwing a dart at the dartboard and deciding what to say and then everyone went on their way? There will certainly be situations in which a convicted petitioner attempts to go back to court and ask for a hearing that probes the advice provided to him by his lawyer, whether it was wrong and whether that inaccuracy supports a claim that the plea withdrawal is in the interests of justice. Of course, this throws the privilege rule under the Michigan Rules of Professional Conduct into total disarray and creates the prospect of nuclear war between the client and his former lawyer.
The other alternative under consideration is to essentially inquire of the lawyer if the lawyer is aware of any immigration consequences and if the client has been advised accordingly. What happens when the lawyer says that there are absolutely immigration consequences, he is not aware what will happen and the client does not want to be deported but wants to get the criminal case over with even though he does not know if he will get deported? Frankly, the prospect of advising my client about immigration law “frightens and confuses me.”
There are some basics to keep in mind. Judge William Kelly of the 3B District Court in Rockford made a presentation to the Ingham County Bar Association in May 2010 shortly after the Padilla opinion. Following the presentation, he kindly provided to me his power point. Start with the 3 consequences that may arise from a criminal conviction from an immigration standpoint:
- Deportation;
- The denial of reentry into the United States in the future if the convicted person leaves the country;
- The denial of the ability to become a naturalized citizen.
The crimes that will lead to immediate deportation under the Immigration and Naturalization Act:
- Moral turpitude;
- Aggravated felonies (this can include misdemeanors);
- High-speed flight from an immigration checkpoint;
- Drug offenses or being a drug addict or abuser;
- Firearm offenses;
- Crimes against the United States government including espionage, sabotage, treason, sedition, threats against the president and the like;
- Domestic violence, stalking, child abuse, child neglect, child abandonment, or violation of a protective order;
- Importation of aliens for purposes of prostitution.
The real difficulty for the lawyer is that you cannot predict what the Bureau of Immigration and Naturalization Services will do. I am always concerned about advising a client properly. When the Supreme Court issued Padilla, my first thought was to compile a roster of immigration attorneys to whom I could refer clients who are not naturalized citizens. I already have a handful of lawyers to who I refer clients with OWI charges from other countries or who want to travel outside the U.S.. The trick for me will be to find the right balance between my level of competence in advising clients on the immigration consequences of a conviction and when I need to refer a client to an immigration attorney. I do not want to have to send every single client to an immigration attorney as soon as I spot a potential issue. By the same token, I do not want to let down a client.
One thing to keep in mind: if you do not like the idea of an added requirement to the plea-taking process, whether you are a judge, private practitioner or prosecutor, go the Supreme Court’s web page, find the forum for your public comment and make your voice heard.
Mike Nichols, The Nichols Law Firm, PLLC, is co-chair of the ICBA Criminal Law Section. He specializes in defending those accused of driving while impaired by alcohol (OWI) or drugs (OWID). He is the author of the “Michigan OWI Handbook” for West Publishing. mnichols@nicholslaw.net.