Criminal Defense of Immigrants


§ 3.52 B. Interviewing Former Defense Counsel

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When vacating a conviction requires making a case that original defense counsel was constitutionally ineffective, trial counsel fall into two groups:[149] (a) those who place the interests of the client first, who are willing to cooperate by providing the defendant’s new counsel with a truthful declaration even though it may expose their mistakes, and (b) those who place their own self‑esteem and reputation ahead of any duty to their client, and who may be defensive.[150]


                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 former attorney’s position will be.  Obviously, it is in the client’s interest to preserve the cooperation of all who place the client’s interests first, to persuade as many as possible to place the client’s interests first, and to obtain the truth from those who place themselves before their clients, even though they may only reluctantly reveal it.


                Counsel can emphasize the following issues, if they are appropriate:


                (a)  New and old counsel share the common professional responsibility 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 entire case file upon termination of the representation.[151]

                (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.[152]  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.”[153]


                One approach is to make an appointment with original counsel to review that counsel’s file and discuss the case.[154]  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:


·      Was counsel aware of the client’s nationality and immigration status at the time of the original representation?


·      What research and investigation did counsel conduct to determine the actual immigration consequences of a particular conviction?  Specifically, what did counsel think the full immigration consequences of the conviction would be?


·      What was the strategy, if any, to minimize adverse immigration consequences?


·      What did the attorney and client discuss the 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.  Often, perhaps because this is the advice many state courts are required by law to deliver before every plea of guilty, this is the sum total of the information the lawyer imparted to the client.[155]  It is important to determine whether the attorney gave any advice that went beyond this general warning, and, if so, exactly what that advice was.


Does counsel have an 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.


                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 unduly educating the attorney concerning what advice would have been sufficient to discharge the obligation of effective counsel.


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

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

[150] Some state laws, e.g., California Business & Prof. Code § 6086.7, may 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 California 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 California 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. Ledema, 43 Cal.3d 171, 233 Cal.Rptr. 404 (1987), the only reported California judicial decision 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.

[151] 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 (1981) (duty to forward the file to client or successor counsel); Kallen v. Delug, 157 Cal.App.3d 940, 950, 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.

[152] 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.

[153] Id., 118 Cal.Rptr. at 631.

[154] It is wise, if not ethically required, for post-conviction counsel 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).

[155] This is, of course, inadequate in some jurisdictions to discharge defense counsel’s obligation to research the exact immigration consequences of a plea and inform the client, before the plea is entered.  E.g., People v. Soriano, 194 Cal.App.3d 1470 (1987).