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Supreme Court Considering Protection From Bad Lawyer Advice
There is an interesting case currently being heard by the Supreme Court in Washington, D.C. Jose Padilla, a Honduran-born immigrant faces deportation after pleading guilty to felony marijuana trafficking, but he claims that he received bad advice from his lawyer and wants the court to void his guilty plea.
The case is not only interesting for the almost 13 million legal immigrants living in the U.S., but also to many other cases that may have been impacted by bad advice from lawyers, including those that meant a loss of child custody.
Finding a great lawyer to handle your divorce and custody case is more than likely a matter of luck, if you can’t go by recommendations from others, even if you are following certain common sense rules that ore outlined in several books, including The Child Custody Book. I am sure that I am not the only one who has felt deceived and misled by a lawyer in the past and would wish there were more tools for consumers to hold lawyers responsible for intentional or incompetent legal advice that may cost you lots of money or more.
Jose Padilla is such a case and he may have felt that enough is enough. According to the Miami Herald, Padilla wants his guilty plea tossed out, arguing that it violates his Sixth Amendment rights guaranteeing effective assistance of counsel. He said that he would not have pleaded guilty if he hadn’t been misinformed by his court-appointed attorney.” Sure, Padilla is everything else but innocent. Having lived in the U.S. legally for more than 40 years, the truck driver was caught transporting 1033 pounds of marijuana. Padilla originally pleaded not guilty to numerous charges brought forward as a result of the crime, but he was detained for a year during the investigation of a possible deportation.
His attorney told him that he should plead guilty to receive reduced jail time. He was told that the plea agreement would not affect his immigration status, which, however, was not so great advice. Padilla was sentenced to five years in prison and five years of probation and now faces deportation. Padilla’s new attorney Stephen Kinnaird claims that the guilty plead should be reversed, due to the bad advice his client received. He argues that defense lawyers should inform clients of both the direct consequences of a plea as well as and the broader “collateral’ consequences, which relates to deportation in this specific case.
If Kinnaird is successful with his presentation of the case, the fallout could be massive and impact not just deportation cases, but also decisions based on “bad advice” that have affect loss of child custody or loss of property through seizure, according to Supreme Court justice Antonin Scalia. “We have to decide whether we’re opening Pandora’s box here,” Scalia said. Justice Anthony Kennedy suggested that judges may have to consider disclaimers in future, informing defendants that they would have to accept any collateral consequences of their decision.
In the end, Kinnaird has found himself being questioned how attorneys and courts could protect themselves from situations in which, after sentencing, defendants later say they were misinformed of a plea’s larger consequences. Justice Ruth Bader Ginsburg asked how already busy court-appointed attorneys could be expected to distinguish between the broader consequences that could affect a defendant and those that don’t.
It seems that this will be a long case that is surely worth watching. But somehow I get the feeling that the outcome will be rather simple: When signing a retainer, the fine print will inform you that some advice you receive might be wrong and you simply have to deal with that. Or your plea will simply be covered by a disclaimer mentioned by a judge.
My advice? When choosing a lawyer, follow the recommendations you may receive from friends and family. If you don’t have any recommendations, talk to a number of attorneys and keep a distance to those you have a bad feeling about. Often, the first impression isn’t the worst one when you have to decide for or against a lawyer who will have to represent you in a court of law. In the end, you may not be able to protect yourself from bad advice, but you can reduce the risk by choosing an attorney who has a decent case history and an attorney you feel comfortable with.
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