Under the Circumstances: Padilla v. Kentucky Still Excuses Fundamental Fairness and Leaves Professional Responsibility Lost

Abstract

The Supreme Court’s decision in Padilla v. Kentucky includes within the Sixth Amendment’s right to the effective assistance of counsel advice on immigration, but still falls short of attaining fundamental fairness and legal professional responsibility. Where Padilla’s recognized representation standard only requires an attorney to advise when the immigration consequences of a guilty plea are “truly clear” —allowing the attorney to “do no more” when not clear—the guiding hand of an attorney remains fractured and will force a noncitizen client to proceed in plea bargaining without informed consent. Rather than giving a private practitioner an excuse to “do no more,” the private practitioner should simply study and provide the applicable immigration law under the circumstances. A public defender not knowledgeable in immigration law, however, should be allowed to do no more based on their uncontrollable caseload, provided an immigration lawyer is also appointed.