You're representing a client charged with a misdemeanor domestic violence offense, and he's going to be pleading guilty. You advise him that the penalty is a maximum six months in jail and a $1,000 fine. That's the easy part. If you're client's a non-citizen, you'll advise him to seek the opinion of an immigration attorney on how a conviction of that offense might affect his immigration status, especially after the Supreme Court's 2010 decision in Padilla v. Kentucky, which held that an attorney had rendered deficient performance by misadvising his client about the deportation consequences of a drug conviction. But do you advise him that a subsequent charge of domestic violence will be a felony? Do you tell him that a conviction of domestic violence means he's barred under Federal law from ever owning a gun?
You're handling a drug case. Your client lives in Section 8 housing. Do you tell her that a conviction will result in her ineligibility for that?
Welcome to the brand new world of collateral consequences.
The 5th Amendment Due Process Clause requires that a defendant make a "knowing, intelligent, and voluntary" waiver of his rights when entering a guilty plea, and it's hard to make a showing that he's done that if he's unaware of the consequences of a plea. But what "consequences" are we talking about? As the above examples demonstrate, the range of potential penalties for conviction of a crime go far beyond possible incarceration or fines.
For the longest time, the courts developed a simple fiction to handle this: they drew a line between the "direct" and "collateral" consequences of a conviction. Not that these definitions were consistent: some cases limited "direct" consequences solely to the potential incarceration and fines, others extended it to anything which was within the control of the sentencing court, still others defined it as an "automatic" consequence of a plea, such as the driver's license suspension.
But however appropriate the distinction was for 5th Amendment purposes, it breaks down in the context of the 6th Amendment right to counsel. An attorney has a different obligation to his client than a judge has to a defendant, simply because he's supposed to know the client better. The judge in a drug prosecution case, certainly at the time of the plea, has no knowledge of the client's particular situation. But the attorney may very well know that his client is, or intends to, attend college on a Federal grant or scholarship. Does he have the obligation to tell the client that a guilty plea will disqualify him from receiving such aid?
Whatever the merits of the argument that he did, it was rejected prior to Padilla: courts consistently held that an attorney did not render ineffective assistance under Strickland v. Washington by failing to advise a defendant of the indirect consequences of a criminal conviction. It's difficult to reconcile this with the general requirements for representation detailed in the ABA Criminal Justice Standards, which since 1980 have held that "to the extent possible, defense counsel should determine and advise the defendant as to the possible collateral consequences that might ensue from entry of the contemplated plea." In fact, the Standards impose on counsel the duty to "interview the client to determine what collateral consequences are likely to be important to a client given the client's particular circumstances and the charges the client faces."
A large part of the refusal to implement those standards into the Strickland analysis was the breadth of the potential collateral consequences. Go back to the educational aid issue. It's easy to make the argument that if you know your client's presently attending school on a loan, you should advise them that a drug conviction might endanger that. But let's say you only know that your client's attending school; do you have an obligation to inquire further as to how she's paying for it? Do you have the obligation to warn her that, if she attends school in the future and require grants or aid to do so, a conviction could jeopardize that?
The decision in Padilla was made much easier by the fact that the issue in question didn't involve any guessing: it's hardly an onerous imposition to require counsel to know that if his client's not a citizen, there might be immigration consequences from a conviction or plea. What's important here, though, is what the Court did not do in Padilla. Given its recognition that "immigration law can be complex," it could have held that counsel merely had the obligation to inform the client that there might be immigration consequences, and leave it up to the client to obtain more information or legal counsel on that subject. Instead, the Court held that "when the deportation consequence is truly the clear," the attorney has the duty to give correct advice regarding that. Secondly, the Court rejected the government's contention that ineffective assistance in immigration cases should be limited to instances of affirmative misadvice, as had happened to Padilla. (His lawyer had told him that he wouldn't be deported, when in fact the crime he pled to mandated deportation.)
Padilla thus broke down the wall between direct and collateral consequences of a plea. Can the decision be extended beyond immigration? As mentioned, Padilla's case, by virtue of the fact that he was a non-citizen, made clear that immigration consequences were an issue; it did not require counsel to try to anticipate the client's future decisions, and how a plea would impact those decisions. Another factor was the Court's recognition that, in many cases, the deportation consequences are far more severe than the direct criminal consequences. Thus, one might argue that Padilla imposes on counsel the duty to advise where the collateral consequences are "clear and severe." You don't have to advise your client that if he wants to go to college some time in the future, the plea to marijuana possession is going to disqualify him from student loans for a year. But you do have a duty to advise the client of the effect of a plea to domestic violence, not only to future charges but as to the client's possession of firearms.
And keep in mind that we're talking about two different things here: what your obligation is as an attorney, and what the courts will say your obligation is as an attorney, within the context of the Strickland analysis. The two are not the same. One New York case (pre-Padilla) found that the attorney hadn't rendered ineffective assistance by failing to advise his client that his plea to a sex offense would make him subject to sex offender registration and notification laws, which prohibited him from living with his own children. It's hard to square that result with what the normative standards of representation should be.
The reason for that, of course, is that courts engaging in the Strickland analysis are driven by certain interests, including the finality of litigation and the concern over opening the "floodgates of litigation" and allowing defendants to claim that their attorney's failure to advise them on some point or another entitles them to another bite of the apple. (The "floodgates" argument was urged strenuously by the government and the concurring opinion in Padilla.) We, as attorneys, are not driven by those interests; our only interest should be the effective representation of our clients, and the failure to consider the collateral consequences of a conviction is not consistent with effective representation.
And to certain extent, we as attorneys set the bar here. Strickland's first prong, the deficient performance inquiry, measures counsel's behavior with reference to the professional norm: "the defendant must show that counsel's representation fell below an objective standard of reasonableness." If attorneys take seriously the obligation to learn about their client, to determine whether there are collateral consequences to a conviction, and to properly advise the client how those consequences will impact him, it is more likely that future courts will find that the failure to do that is no longer objectively reasonable. More work for us, but better results for the client, and that's what it should be all about.