Tooby's California Post-Conviction Relief for Immigrants

Chapter

§4.1 I. Investigating the Case
§4.2 A. In General
§4.3 B. The Timing of the Case
§4.4 C. Dealing With Bias Against Noncitizens
§4.5 II. Interviewing the Client
§4.6 A. Preparation
§4.7 1. Special Considerations
§4.8 2. NonEnglish Speaking Clients
§4.9 3. Basic Goals
§4.10 4. Client's Culture
§4.11 B. Client Interview
§4.12 1. Basic Immigration Status Questionnaire
§4.13 2. Screening for U.S. Citizenship
§4.14 a. Born in the United States
§4.15 b. Born to U.S. Citizen Parent(s) Abroad (Acquired Citizenship)
§4.16 c. Naturalization
§4.17 d. Child of Naturalized Citizen (Derivative Citizenship)
§4.18 e. Nationals of the United States
§4.19 f. American Indians Born in Canada
§4.20 g. Denaturalization
§4.21 3. Determining Immigration Status
§4.22 4. Advice for Client
§4.23 5. Client's Equities
§4.24 6. How Important Are the Immigration Consequences to the Client?
§4.25 7. Criminal Issues
§4.26 a. The Basic Criminal Case Interview
§4.27 b. Determining Which Criminal History Reports to Order
§4.28 c. Prior Convictions and Their Validity
§4.29 8. Obtaining Information About the Client's Culture
§4.30 9. Obtaining Medical Information
§4.31 III. Obtaining Immigration Records
§4.32 A. FOIA Requests
§4.33 B. Information on Amnesty Clients
§4.34 IV. Obtaining Criminal Records
§4.35 A. Criminal History Reports
§4.36 1. FBI Criminal History Reports
§4.37 2. State Criminal History Reports
§4.38 3. Motor Vehicle Conviction History
§4.39 4. Correcting Errors in Criminal Histories
§4.40 B. Obtaining Court Files and Transcripts
§4.41 C. Record Destruction Does Not Eliminate Convictions
§4.42 V. Obtaining Assistance from Immigration Counsel
§4.43 A. Finding Immigration Counsel
§4.44 B. Initial Consultation
§4.45 C. On-Going Consultation
§4.46 D. After Final Disposition of Criminal Case
§4.47 VI. Obtaining Assistance from Former Counsel
§4.48 A. Obtaining Attorney's Case File
§4.49 1. In General
§4.50 2. Conflict of Interest
§4.51 3. Attorney-Client and Work-Product Privileges
§4.52 B. Interviewing Former Defense Counsel
§4.53 1. Duty to Cooperate With Successor Counsel
§4.54 2. Mistakes Should Not Trigger Discipline or Malpractice Liability
§4.55 3. General Considerations
§4.56 4. Corroborating the Client's Assertions of Prejudice
§4.57 VII. Obtaining Information About Client's Culture
§4.58 A. Cultural Experts
§4.59 B. Cultural Defenses
§4.60 C. Cultural Mitigation Issues
§4.61 D. Persecution and Torture of Client if Deported
§4.62 VIII. Cultural Effects on Medical Investigation
§4.63 IX. Foreign Investigations

§ 4.54 (B)

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(B)

Malpractice Liability. Malpractice liability is not a realistic possibility, unless the client was actually innocent of all wrongdoing.[168] In addition, any statements 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.[169] As the court stated, "[A]n attorney should be able to admit a mistake without subjecting himself [or herself] to a malpractice suit (Id., 118 Cal.Rptr. at 631.).”

[168] Lynch v. Warwick (2002) 95 Cal.App.4th 267, 115 Cal. Rptr. 391 (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 (2001) 25 Cal.4th 1194; Barner v. Lees (2000) 24 Cal.4th 676).

[169] Smith v. Lewis (1975) 13 Cal.3d 349, 118 Cal.Rptr. 621, disapproved on other grounds in Marriage of Brown (1976) 15 Cal.3d 838, 851 n.14, 126 Cal.Rptr. 633.