Criminal Defense of Immigrants


§ 2.26 2. We Cannot Limit the Scope of Representation Without Obtaining the Client's Informed Consent

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Second, we cannot limit the scope of our representation without getting the clients’ “informed consent,” which requires informing them of the material risks of proceeding to handle a criminal case in ignorance of the immigration consequences, and the available alternatives to doing so, i.e., obtaining a different lawyer who is competent to protect the client’s immigration status.[1]  Even where we do limit the scope of the representation to exclude immigration considerations, for example, we must alert the client to all reasonably apparent legal problems that may exist.  In other words, even if we limit our representation, we must tell the client about all the immigration damage s/he may suffer by resolving a criminal case without investigating and trying to avoid the immigration damage it might cause.


                Many jurisdictions follow the ABA Model Rules on this point.[2]  In California, however, no rules correspond to ABA Model Rule 1.2(c), which allows a lawyer to limit the objectives of the representation provided that the client consents upon consultation, although California does prevent an attorney from prospectively limiting his or her liability to the client for professional malpractice.[3]  Judicial decisions allow some limitation of the scope of retention, but require counsel doing so to alert the client to all reasonably apparent legal problems that may exist.[4]

[1] Under the ABA Model Rules of Professional Conduct, “[a] lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”  ABA Model Rule 1.2(c).  “Informed consent” is defined as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”  ABA Model Rule 1.0(e).

[2] These include Arkansas, Arizona, Colorado, Connecticut, the District of Columbia, Florida, Illinois, Kentucky, Louisiana, Maryland, Michigan, New Jersey, New Mexico, Ohio, Pennsylvania, Rhode Island, South Carolina, and Texas.  Jurisdictions with rules based on the ABA Model Code include Ohio, Oregon, and New York.

[3] California Rule of Professional Conduct 3-400(A).

[4] Nichols v. Keller, 15 Cal.App.4th 1672, 1684, 19 Cal.Rptr.2d 601 (5th Dist. 1993) (workers’ compensation attorneys should be able to limit scope of retention to compensation for claim if the client is cautioned that (1) there may be other remedies which the attorney will not investigate, and (2) other counsel should be consulted on such matters; even where scope is expressly limited, duty to alert client of all reasonably apparent legal problems may exist).