Criminal Defense of Immigrants


§ 2.41 H. It Is In Our Own Interest to Defend Our Clients Against Immigration Disaster

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The reasons given above describe why it is in our clients’ interest for us to make sure we do everything we can to prevent immigration disasters triggered by the outcome of the criminal cases we handle.  It is very much in our own interest to do so, for a long list of reasons:


·         Desire to deliver excellent legal services.

·         Benefits of practice development through total client service.

·         Ineffective assistance of counsel.

·         Malpractice liability.

·         Malpractice insurance rates.

·         Eligibility for membership on court appointed panels.

·         Damage to reputation within the profession.

·         Damage to reputation among client communities.

·         Disciplinary sanctions: disbarment and lesser penalties.

·         Damage to self-esteem.

·         Loss of income.

·         Stress and mental distress.

·         Costs of attempting to rectify a mistake.[89]


Our primary motivation is to assist our clients, but we are human, and of course take our own interests into account.  This list speaks for itself, but a couple of further comments deserve mention here.


                The risk of malpractice liability is not as great as we might think.  In many jurisdictions, courts are very reluctant to award damages to criminals for malpractice claims.  Some jurisdictions, such as California, even follow a rule that a defendant cannot recover at all for malpractice unless s/he is innocent.[90]  A claim can, however, lead in some cases to an increase in the cost of professional liability insurance.


                The risk of state bar disciplinary action, likewise, is far more limited than we might think.  It is true the state bar asks us and the courts to report instances in which a conviction is overturned for ineffectiveness of counsel, but careful investigation has failed to disclose any instance in California in which an isolated case of ineffectiveness based on a simple mistake resulted in discipline.  Making a simple mistake is simply not a ground of discipline.  We’re not required to be perfect.


                I think many or most of us have made the type of errors described here.  I know I have.  The standard of practice is rising, and we are learning more about these issues.  The time has come, however, for us to recognize that in every single case, we must (a) learn whether our client is a United States citizen or not, and (b) in the cases of the noncitizens, investigate the actual immigration consequences of various possible dispositions, inform the client, and try to avoid them if appropriate and if possible.  The conclusion will outline a simple way to do so that uses our knowledge and skills as criminal lawyers, but does not require us to learn the complexities of immigration law.

[89] David M. Siegel, My Reputation or Your Liberty (Or Your Life): The Ethical Obligations of Criminal Defense Counsel in Postconviction Proceedings, 23 Journal of the Legal Profession 85 (1999).

[90] Lynch v. Warwick (2002) 95 Cal.App.4th 267, 115 Cal.Rptr.2d 391 (a defendant is barred from pursuing a malpractice case against a criminal defense counsel unless s/he can establish actual innocence of the offense).