Is it possible to enlist the support of a criminal defense attorney ostensibly against her own interests, convincing her to sign an affidavit which states that she did not tell her former client of the deportation consequences of the plea agreement the client signed? The attorney’s first words, should you ever reach her, may be: “I do not want to be faced with a criminal malpractice suit.”
For cases prior to 2010, it wasn’t necessarily malpractice for an attorney to fail to mention the consequence of deportation. Rather, it was worth granting her former client a new trial.1 Even in cases after 2010, criminal malpractice is very difficult to prove.
Padilla v. Kentucky
“On March 31, 2010, the United States Supreme Court ruled in Padilla v. Kentucky that an attorney’s representation of a defendant is ineffective when the attorney, counseling a non-citizen defendant on whether to plead guilty to a crime for which deportation is mandatory, fails to advise the defendant that his guilty plea will result in the defendant’s deportation.”2
That rule was a change in the 6th Amendment right to counsel line of reasoning: “Prior to Padilla, it was well established that an attorney’s failure to inform a noncitizen that a conviction could result in deportation or removal was insufficient grounds for a claim of ineffective counsel. . . .”3
People v Ford
In New York, before Padilla’s central holding in 2010, the defense bar could rely on People v. Ford.4 There, the New York Court of Appeals explained that failure to warn a client of the possibility of deportation was not ineffective assistance of counsel:
Deportation is a collateral consequence of conviction because it is a result peculiar to the individual’s personal circumstances and one not within the control of the court system. Therefore, our Appellate Division and the Federal courts have consistently held that the trial court need not, before accepting a plea of guilty, advise a defendant of the possibility of deportation (see, People v. Boodhoo, 191 A.D.2d 448, 593 N.Y.S.2d 882; People v. Williams, 189 A.D.2d 910, 592 N.Y.S.2d 471, lv. denied 81 N.Y.2d 978, 598 N.Y.S.2d 780, 615 N.E.2d 237; Fruchtman v. Kenton, supra; Cuthrell v. Director, Patuxent Inst., supra; United States v. Parrino, 212 F.2d 919, 921 (2d Cir.1954), cert. denied 348 U.S. 840, 75 S.Ct. 46, 99 L.Ed. 663). We adopt that rule and conclude that in this case the court properly allocuted defendant before taking his plea of guilty to manslaughter in the second degree. . . . Nor did the failure of counsel to warn defendant of the possibility of deportation constitute ineffective assistance of counsel.5
The New Rule
In 2010, the Supreme Court changed the rules. “[In Padilla v. Kentucky, the] Court’s holding was the first time the Sixth Amendment right to counsel was extended to a consequence of conviction beyond the court-imposed punishment.”6 Now, the right to counsel includes advising a client of the deportation consequences of his plea, at least where the consequence is clear.7
Pre-Padilla Applied Retroactively
Unfortunately, many cases do not fit along a linear timeline. The issue may sit not pre-Padilla nor post-Padilla, but “pre-Padilla applied retroactively.” Countless 440 motions seek to apply the Padilla ineffective assistance of counsel rule retroactively.8 If on the one hand you want to say “it was ineffective assistance of counsel even then (when Ford controlled)” aren’t you obligated to also say, “Thus, it was malpractice even then”? The short answer is “Almost never.”
Not only was People v Ford controlling, but the malpractice standard is set very high in New York, such that even after Padilla, malpractice will not necessarily lie unless the defendant granted a new trial actually has one based on the elements of the original crime, and then is found not guilty. For a discussion see
The article, by the New York State Bar Association, explores the issue of malpractice AFTER Padilla v. Kentucky.9
It seems it would be even more unlikely for an attorney to commit criminal malpractice BEFORE Padilla was decided. For, there would be two onerous burden on defendants turned plaintiffs: providng actual innocence, and also showing that it was the norm in that community to advise clinets of deportation consequences. So what is the harm in helping former clients by swearing that the attorney did not provide such information?
Getting an Affidavit
It would seem necessary to get such an affidavit stating that the former attorney did not advise –or does not recall advising– her past client on the deportation consequences of his plea agreement. Otherwise, the client makes merely a bald assertion that no one advised him of the fact he could and would be banished from the U.S. if he agreed to plea to a reduced charge. The ‘reduced charge’ might have included an element of a Crime Involving Moral Turpitude, an offense for which deportation is applied. The client needs to ground his assertion that no one told him about deportation in more than just his own affirmation, and who better to support it than the attorney who was advising him?
The former attorney may want to help with the 440 motion. She may not have been versed in immigration law, a complex field with no easy manual (crimes involving moral turpitude, for example, must be gleaned by poring through cases that happen to name the offense a CIMT—there isn’t a comprehensive, consistent list.) She may be fervently in support of due process, and want her former client to win his 440 Motion for a trial. But, she fears she may be sued for malpractice. So she doesn’t return calls, and she certainly doesn’t write an affidavit. Her fears are not unfounded. Still, she could be reminded, when you do get in touch with her, about the standards for malpractice in NY.
Application of the But/For Test
The “but/for” causal element in the tort of malpractice is set strictly in New York. A defendant must show actual innocence in New York to satisfy the “but/for” causal element of malpractice to prove his innocence.10
Thus, her former client cannot show actual innocence if the case is dismissed. He cannot show actual innocence with a new plea agreement (which is presumably lowered by the District Attorney to a level or including elements in which deportation is no longer a consequence) for which he pleads guilty. Her former client cannot show actual innocence if his attorney negotiates a dismissal based on statutory elements such as the Statute of Limitations. He only can claim actual innocence if he gets a new trial and succeeds in getting a Not Guilty verdict.
Finally, the former attorney may also be informed that if she did not advise the client of the immigration consequences to his plea, and she does not write an affidavit saying so, an evidentiary hearing will be her ex-client’s next step, where she will have to testify under oath in any case. Some attorneys may prefer such a scenario.
It is a good idea to try and get the affidavit which says the former attorney did not advise her client of the deportation consequences of his plea, so that the client is supported by more evidence than just his say-so. It is important that defense attorneys be engaged in the work of crafting a remedy for the countless clients who agreed to badly drafted plea agreements. Educating those attorneys about the low risk involved makes that more possible.
1. Whether a defendant whose plea allocution took place prior to 2010 and who now wants a new trial based on ineffective assistance of counsel pursuant to Padilla v. Kentucky remains to be seen. U.S., 130 S.Ct. 1473 (2010). Padilla holds that failure to advise a client of the deportation consequences of his plea is ineffective assistance of counsel. The retroactivity of that issue will be decided soon by the Supreme Court, which heard arguments on the question in November, 2012 in Chaidez v U.S. See http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-820.pdf. See also http://www.scotusblog.com/case-files/cases/chaidez-v-united-states/. Retrieved January 9, 2013.
2. People v. Garcia, 32 Misc. 3d 1232(A), 936 N.Y.S.2d 60 (Sup. Ct. 2011)
3. Michael Vomacka, Supreme Court Decision in Padilla v. Kentucky States Affirmative Duty to Inform Client of Risk Guilty Plea May Result in Removal, 25 Geo. Immigr. L.J. 233, 234 (2010)
(Internal citations omitted.)
4. People v. Ford, 86 N.Y.2d 397, 403-04, 657 N.E.2d 265, 268 (1995)
6. Id. (Internal citations omitted.)
7. See Padilla v. Kentucky, where the Court explained that the “terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for Padilla’s conviction….” 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284 (2010).
8. See FN 1, infra.
9. Padilla v. Kentucky, U.S., 130 S.Ct. 1473 (2010) and see http://www.nysba.org/AM/Template.cfm?Section=Home&template=/CM/ContentDisplay.cfm&ContentID=47886
10. A list of cases which required that actual innocence must be alleged and proven were compiled for the Fordham Law Review article Criminal Malpractice: Privilege of the Innocent Plaintiff, by Susan Treyz, FN 57: See, eg., Carmel v. Lunney, 70 N.Y.2d 169, 173, 511 N.E.2d 1126, 1128, 518 N.Y.S.2d 605, 607 (1987) (“plaintiff must allege his innocence or a colorable claim of innocence”); Winkler v. Messinger, Alperin & HufJay, 147 A.D.2d 693, 693, 538 N.Y.S.2d 299, 300 (2d Dep’t 1989) (malpractice claim did not set forth viable cause of action because it did not allege plaintiff’s innocence of criminal charges); B.K. Industries, Inc. v. Pinks, 143 A.D.2d 963, 964-65, 533 N.Y.S.2d 595, 596-97 (2d Dep’t 1988) (client seeking malpractice damages for negligent misrepresentation in criminal case had burden to prove his innocence); Claudio v. Heller, 119 Misc. 2d 432, 433-35, 463 N.Y.S.2d 155, 156-57 (Sup. Ct. 1983) (no viable malpractice claim because plaintiff guilty in prior action could not allege causation in subsequent malpractice suit). Article Retrieved January 10, 2013 at http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2912&context=flr