November 25, 2015 Top Story

Attorney's Minimal Deportation Warning Sufficient

Court approves attorney's warning that criminal plea could result in deportation

Candice A. Garcia-Rodrigo

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.

The Warning

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.

When the plea was entered, Ortiz signed a state-mandated waiver of rights form, indicating that his plea “could result in deportation.” Ortiz was charged with a felony with a domestic violence enhancer, which the lower court found does not necessarily involve “moral turpitude” that would result in deportation. The attorney conveyed the information in the waiver form, and Ortiz was on an immigration hold such that he was aware of the possible negative immigration consequences.

The lower court also informed Ortiz about the possible immigration consequences. Ortiz orally confirmed to the lower court that he had read the form carefully before signing it and that he had an opportunity to discuss it fully with his attorney. After serving his sentence, Ortiz was taken into custody by Immigration and Customs Enforcement and avoided deportation by agreeing to a voluntary departure.

On appeal, the Wisconsin Supreme Court denied Ortiz’s request to withdraw his plea, finding that he did not receive ineffective assistance of counsel. His attorney’s warning that the conviction “may carry a risk of adverse immigration consequences” was, in the appellate court’s view, sufficient. The appellate court explained that conviction of a domestic violence crime was a deportable offense, but the risk of deportation was not certain because federal law does not clearly state that substantial battery involves moral turpitude.

This ruling followed the appellate court’s earlier ruling in State v. Shata, where another attorney’s warning that the defendant had a “strong chance” of deportation was sufficient because the federal immigration laws were in that circumstance also not certain to result in deportation. The dissenting opinion in Ortiz disagreed with the majority, explaining that if the attorney had conducted minimal research, then he would have been able to give the client “more than a general warning.” The dissenting opinion noted that it was clear that the domestic violence enhancer to his sentence made him deportable.

Fulfilling Ethical Duties

The argument of ineffective assistance of counsel came down to the question of whether the attorney had fulfilled his professional duties to the client. The appellate court considered the attorney’s duties and found that the attorney had met them. Among the duties included in the Model Rules of Professional Conduct are competence and diligence, also commonly referred to as “zealous advocacy.”

Model Rule 1.1 provides that an attorney has a duty to provide a client competent representation, which “requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” To fulfill this duty, the attorney must conduct research or consult with other legal professionals with experience in the area. At the outset of a case, “the attorney should know the law, when advising clients as to what could potentially occur,” states Nate Cade, Milwaukee, WI, former cochair of the Section of Litigation’s Ethics & Professionalism Committee. If the attorney does not know the law, then he needs to become familiar with the law, Cade notes. Cade believes that the decision was correct, because the waiver of rights form is mandatory. “Short of creating his own form for the client to sign, the attorney fulfilled his duties here, because the immigration laws stated that you may be deported, not shall be deported,” Cade asserts.

Model Rule 1.3 requires an attorney to diligently represent clients, which includes being a zealous advocate. The rules do not categorically command attorneys to act as zealous advocates, but the Preamble to the Model Rules provides that attorneys are obligated to zealously “protect and pursue a client’s legitimate interests, within the bounds of the law.” Zealous advocacy entails understanding the client’s goals and making every effort to meet those goals, argues Emily Crandall Harlan, Washington, D.C., cochair of the Section of Litigation’s Criminal Litigation Committee.

“I think the Wisconsin court has set the bar pretty low for attorneys giving these immigration warnings,” opines Harlan. “There are not enough facts here to determine if the attorney met his burden of zealous advocacy. The attorney must make efforts beyond handing a paper to the client or giving him stock language. Part of zealous advocacy is mitigating risks to the client when negotiating a plea. You must research the immigration consequences to achieve the client’s goal, which here was to remain in the States,” she concludes.


Candice A. Garcia-Rodrigo is a contributing editor for Litigation News.

Keywords: ethics, duty, competence, zealous, Wisconsin, immigration, deportation

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