Tuesday, April 24, 2012

Judge decrees that defendants must waive attorney-client privilege

"My attorney has advised me that this plea will result in the following immigration consequences for me: __________."
This is the new admonishment that Marc Carter, the Presiding Judge of the 228th Judicial District Court has added to the plea papers used in that court.

What could possibly be wrong with the defendant acknowledging he understands the potential immigration consequences of his plea? What court, in the post-Padilla era wouldn't want it on the record that the defendant was aware that his plea could have some serious consequences as to his or her future in the United States? More cynically, what court wouldn't want to cut off those habeas writs alleging the defendant was unaware of the consequences of his plea off at the knees?

But let's think about this for a second. The last time I checked my conversations with my clients were privileged (with very rare exception). Only the client can waive that privilege.

Judge Carter is requiring defendants to waive attorney-client confidentiality. More than that, Judge Carter is requiring defendants who may not understand the privileges and protections they are afforded by law.

When entering a plea, a defendant necessarily waives his right to remain silent. But there is no such requirement that he waive attorney-client confidentiality. Any attorney who presents this paperwork to his client prior to a plea is asking that client to waive a right he or she may not even be aware they have. Any attorney who asks his client to sign this admonishment is knowingly violating a sacred trust.

Are we going to start carving up that privilege depending on the type of crime alleged or the immigration status of the defendant? Is asking a certain class of defendants to waive privilege a violation of the 14th Amendment's Due Process Clause?

And then there's the little bitty problem that a defense attorney cannot tell a client exactly what the potential immigration consequences of plea could be. If the alleged conduct would constitute a felony under federal law, then the client may be subject to deportation. If the alleged conduct is a crime of dishonesty, the client may be deportable. If the client pleads guilty to a drug charge, he may be deportable. But what about immigration bonds and the pleadings los federales must file? What about the client's status and his history? These are all factors that play a role in how any immigration action might end.

And exactly how is this going to work when the defendant who is here without the blessing of our government is offered a reduced charge if he pleads guilty on the initial setting? Is that attorney going to have enough information to explain to his client what the implications of the plea may or may not be? Is that attorney going to know what his client's legal status is and how the court proceedings may affect that status? Will the court question the signing of the admonishment on the initial setting or be satisfied to have something to that effect on the record?

The admonishment is a bad idea for many different reasons. Judge Carter needs to reconsider the entire idea.

Admonishment - 228th JDC


Gritsforbreakfast said...

I don't know about your interpretation on this, Paul. How else can anyone be sure that attorneys are advising clients accurately about collateral consequences? What about that "sacred trust" - if somebody is deported and their lawyer didn't warn them, what good will your confidential communications (or lack thereof) have done?

Do you think the "immigration consequences" of a plea are somehow strategic information, or is that an objective analysis on which all the lawyers in the room would agree, but the defendant may or may not be informed? IMO more likely the latter.

Paul B. Kennedy said...


The immigration consequences of a plea aren't what I would consider "strategic information" but, then, the nature of the communication isn't the issue here. The communications between an attorney and his client are confidential - and the only party that can waive confidentiality is the client.

To answer your question, we can never be sure that a defendant was provided adequate counsel regarding the immigration consequences of his plea. But that is not a reason to carve up the attorney-client privilege. Particularly if it is a district judge deciding that the privilege doesn't cover certain communications.

If the legislature (in all its very finite wisdom) wants to change the rules of evidence, let them do it. Until then, Judge Carter's new admonishment is the first step down a very slippery slope.

Gritsforbreakfast said...

Don't dare them! They certainly aren't going to rewrite the rules of evidence the way defense lawyers want them!

I must say, I disagree that "we can never be sure that a defendant was provided adequate counsel regarding the immigration consequences of his plea." IMO that's just what Judge Carter's form does, and I must admit I fail to see how it harms the interests of your clients.

Pohokano said...

The judge must not have been much of a lawyer before he took the bench. Seems like he's building in proof to support a later claim of ineffective assistance of counsel. To avoid the privilege waiver, why not simply, "I am aware of the following immigration consequences..." But this, of course, frustrates the intention to force waiver. What a clown.

Anonymous said...

Certainly you talked to Judge Carter about this before the public criticism. I'm curious- what was his reaction? Receptive? Dismissive? He's generally one of the nicest people in the building, but he must have reacted badly for you to post this.