Safe Havens

 

(B)  Original Defense Counsel’s Role in Assisting the Client to Obtain Post-Conviction Relief.  Once the immigration consequences of a prior conviction have become apparent, new counsel should attempt to obtain the necessary information from original defense counsel.  New counsel should immediately obtain a complete copy of the case file from the original defense counsel.  This includes the attorney’s notes, investigation reports, and everything contained in the file.  Submit a written request, accompanied by an information release executed by the client.  Since the entire file is the property of the client, there should be no difficulty.  If the attorney balks, gently educate him or her concerning the ethical obligation to deliver the entire file to successor counsel.  (Original counsel may of course keep a copy at their own expense.)

 

            When vacating a conviction requires making a case that original defense counsel was constitutionally ineffective, trial counsel fall into two groups: [35] (a) those who place the interests of the client first, and are willing to cooperate with the truth even though it may expose their mistakes, and (b) those who may be defensive and place their own self‑esteem and reputation ahead of any duty to their client.[36]

 

            It is important to interview original counsel concerning the handling of the case.  The tactics of the interview will differ, depending on which view the original trial counsel takes.  It is not always possible to tell in advance what the attorney’s position will be.  Obviously, it is in the client’s interest to preserve the cooperation of all in group (a), to convert as many as possible from group (b) into group (a), and to obtain the truth from those who remain in group (b) even though they may only reluctantly reveal it.

   

            Counsel can if appropriate emphasize the following issues:

 

            (a)  The common professional responsibility of new and old counsel to act in their mutual client’s best interests.

 

            (b)  Original counsel has a legal duty to cooperate with successor counsel and promptly return the client’s papers (i.e., the entire case file) upon termination of the representation. [37]

 

            (c)  Any statements the original counsel makes in a declaration intended to reduce the damage to the client from counsel’s actions are inadmissible in any malpractice action against counsel. [38]  This ruling follows the same line of reasoning that renders inadmissible evidence of the correction of an unsafe condition.  As the court stated, “[A]n attorney should be able to admit a mistake without subjecting himself [or herself] to a malpractice suit.” [39]

 

            Sometimes, reluctant counsel may not wish to produce the file, and may claim not to have retained it.  Counsel, however, is ethically required to retain the file.  Los Angeles County Bar Ass’n, Formal Ethics Opinion No. 420 stated: “In the absence of written instruction by the client, the client’s file relating to a criminal matter in the possession of an attorney should be retained by the attorney and not destroyed.”

 

            One approach is to make an appointment with original counsel to review that counsel’s file and discuss the case. [40]  It is important to arm oneself with an information release signed by the client so original counsel is authorized and feels free to discuss the confidential aspects of the case with successor counsel.  After reviewing the file, interview counsel concerning the following issues:

 

            (a)  Counsel’s awareness of the client’s nationality and immigration status at the time of the original representation.  Place of birth is usually in the police or probation report.

 

            (b)  Counsel’s research and investigation concerning the immigration consequences of conviction.  Specifically, what did counsel think the full immigration consequences of the conviction would be?

 

            (c)  Counsel’s strategy, if any, to minimize adverse immigration consequences.

   

            (d)  Discussions between attorney and client concerning adverse immigration consequences of a conviction.  It is important to ask specifically what advice and information the attorney gave the client.  If the attorney is a bit vague, counsel can ask if the attorney informed the client that the conviction “might” result in the client’s deportation, exclusion from the United States, or denial of naturalization?  Very often, perhaps because this is the advice the court is required by state advisal statutes such as California Penal Code § 1016.5 to deliver before every plea of guilty, this is the sum total of the immigration information the lawyer imparted to the client. [41]  It is important to determine whether the attorney gave any advice at all that went beyond this general warning, and, if so, exactly what that advice was.

 

            (e)  Counsel’s attitude of cooperation or defensiveness concerning the possibility that counsel made a mistake to the detriment of the client.  It is important to be open concerning the possibility of the need to reopen the conviction in order to reduce or eliminate adverse immigration consequences flowing from the conviction, and the possible need to raise ineffective assistance of counsel as an issue in order to do so.

 

            (f)  Malpractice liability of former counsel is not a realistic possibility, unless the client was actually innocent of all wrongdoing.[42]  Therefore, counsel need not be concerned at all about this possibility.

 

            If counsel appears to be defensive rather than cooperative, a better policy than confrontation may be simply to make exact notes concerning the advice counsel claims to have given the client without educating the attorney unduly concerning what advice would have been sufficient to discharge the obligation of effective counsel.

 

            After the interview is over, a declaration for defense counsel can be prepared recording exactly what defense counsel said.  If defense counsel knows relatively little concerning the immigration consequences of the conviction, this fact will be clear from the declaration.

[35]  Authors fall into two groups: those who divide people into groups, and those who do not.  The present authors fall into the first group.

[36]  E.g., California Business & Prof. Code § 6086.7 does require a court which reverses a judgment on grounds of ineffective counsel to report its action to the State Bar, although there is a great distance between a mistake, even a serious one, and any realistic grounds for discipline.  It is quite rare for an attorney even to be reported to the State Bar.  Responsible persons with the State Bar disciplinary system have indicated that even when a finding of IAC is made, no lawyer, to their knowledge, has ever been disciplined for simply making a mistake.  In People v. Shelley, 156 Cal.App.3d 521, 202 Cal.Rptr. 874, 881 n.1 (1984), in which trial counsel sat mute during trial in protest against the trial court’s order throwing his client in custody during trial, the court reported the IAC reversal to the State Bar.  The statute, however, does not even suggest that it is appropriate to initiate disciplinary action in connection with an IAC reversal.  The decision in People v. Ledemai, 43 Cal.3d 171, 233 Cal.Rptr. 404 (1987), the only reported case in California discovered in which disciplinary action resulted from an IAC finding, illustrates how very extreme the misconduct must be to result in discipline.  A simple mistake is simply not enough.

[37]  Rules of Conduct of the State Bar of California 2‑111 (A)(2); Finch v. State Bar, 28 Cal.3d 659, 665, 170 Cal.Rptr. 629, 632 (1981) [duty to forward the file to client or successor counsel]; Kallen v. Delug, 157 Cal.App.3d 940, 9950, 203 Cal.Rptr. 879, 884‑885 (1984).  State Bar Standing Committee on Professional Responsibility and Conduct, Formal Opinion No. 1992‑127, discusses the extent to which a criminal defense attorney, after being relieved by successor counsel, must cooperate with new counsel.  It held original counsel must turn over the entire file (which belongs to the client) including the attorney’s notes, and must answer all oral questions if failure to do so would prejudice the client.  This Ethics Opinion, which was mailed to all California attorneys, is extremely useful in obtaining cooperation of original counsel.

[38]  Smith v. Lewis, 13 Cal.3d 349, 118 Cal.Rptr. 621 (1975).  It is also wise for counsel to attempt to mitigate any damage suffered by the client.

[39]  Id., 118 Cal.Rptr. at 631.

[40]  It is at least wise, if not ethically required, to be accompanied by an investigator or to use an investigator to conduct this interview, since former defense counsel is in effect a witness.  See People v. Jackson, 187 Cal.App.3d 499, 231 Cal.Rptr. 889 (1986) (possible ineffective counsel for failure to use an investigator while interviewing a prospective witness); see also People v. Guerrero, 47 Cal.App.3d 441 (1975).

[41]  This is, of course, inadequate to discharge defense counsel’s obligation to research the exact immigration consequences of a plea and inform the client, before the plea is entered.  People v. Soriano, supra.

[42] Lynch v. Warwick, 95 Cal.App.4th 267, 115 Cal. Rptr. 391 (2002) (plaintiff suing attorney for malpractice must prove actual innocence of the crime, even if he is not suing for damages but only to get fees returned); see Coscia v. McKenna & Cuneo, 25 Cal.4th 1194 (2001); Barner v. Lees, 24 Cal.4th 676 (2000).