When deportation consequences are not clear, an attorney need only advise a client that criminal charges may carry a risk of an adverse immigration result. In State v. Ortiz-Mondragon, the Wisconsin Supreme Court found that the attorney had no duty to give such advice because deportation was not certain. ABA Section of Litigation leaders say the decision highlights the ethical duties imposed on attorneys and potential concerns about how best to discharge those duties.
Defendant Fernando Ortiz-Mondragon sought to withdraw his “no contest” plea on the ground of ineffective assistance of counsel under Padilla v. Kentucky. In Padilla, the U.S. Supreme Court held that attorneys have an affirmative duty to give correct advice to noncitizen criminal clients whether criminal charges carry a clear risk of deportation. Ortiz alleged that his attorney failed to research the possible immigration consequences and did not advise him that he certainly would be deported.