Evolving standards of reasonableness: the ABA standards and the right to counsel in plea negotiations.

AuthorLove, Margaret Colgate
PositionPadilla and the Future of the Defense Function

ABSTRACT

The ABA Criminal Justice Standards have been recognized by the Supreme Court as one of the most important sources for determining lawyer competence in right to counsel cases. Because the constitutional test under the Sixth Amendment is whether defense counsel's performance was "reasonable" under "prevailing professional norms," the standard of competence is necessarily an evolving one. The Supreme Court's decision in Padilla v. Kentucky underscores the defense bar's stake in participating in the ABA standard-setting process to guide the development of defense counsel's obligations in plea negotiations. In addition, to the extent the courts give the ABA Standards credence in judging ineffective assistance claims, they can be powerful catalysts for changing the behavior of other actors in the plea process, as well as system norms. The Standards can also be leveraged to help the defense bar gain access to the additional resources necessary to comply with the constitutional obligations of defense lawyers post-Padilla. Two developments give this problem particular urgency: One is the proliferation of status-generated "collateral" penalties affecting every activity of daily life, penalties that are frequently more severe than any sentence potentially imposed by the court. The other is the broad applicability of these collateral penalties to misdemeanants and other minor offenders who in the past would have been spared the reduced legal status and stigma reserved for convicted felons. Part I of this Article analyzes the Supreme Court's treatment of the ABA Standards in Sixth Amendment cases, and Part II discusses the manner in which the Standards are developed and approved as ABA policy. Part III describes the provisions of the Standards that govern plea negotiations, and proposes their expansion in light of the new mandate given defense lawyers by Padilla. It concludes by urging greater defender participation in the Standards process to shape how the Sixth Amendment standard evolves, and to maximize Padilla's systemic effect.

TABLE OF CONTENTS Abstract Introduction I. The ABA Standards in the Supreme Court II. The ABA Standards Process III. Evolving Standards of Reasonableness A. Current ABA Standards Relating to Representation in Plea Negotiations B. The Need for Revisions to the Standards Post-Padilla Conclusion INTRODUCTION

In cases applying the Sixth Amendment right to counsel, the Supreme Court has given credence (if not quite deference) to what the bar thinks a lawyer's duty to the client ought to be. As the leading organization of legal professionals in the United States, the American Bar Association (ABA) has been a constant source of received wisdom on the topic of lawyer competence. Through its ethics rules and standards, the ABA exerts a powerful influence over how American lawyers behave, largely because the courts are their willing enforcers. Accordingly, the defense community has an important stake in participating in the ABA standard-setting process if it is to have some control over defender obligations under the Constitution. This Article argues that defense lawyers, particularly public defenders, should participate in a more sustained way in the process of developing ABA Criminal Justice Standards.

Part I analyzes the Supreme Court's treatment of the ABA Standards in Sixth Amendment right to counsel cases. Part II discusses the manner in which the Standards are developed and approved as ABA policy. Part III describes the provisions of the Standards that govern plea negotiations and proposes their expansion in light of the new mandate given criminal defense lawyers by Padilla v. Kentucky. (1) This Article concludes by proposing that defender organizations should seize the opportunity presented by Padilla to guide how the Sixth Amendment standard evolves and to maximize Padilla's systemic effect.

  1. THE ABA STANDARDS IN THE SUPREME COURT

    In Padilla v. Kentucky, the Supreme Court reaffirmed that the Sixth Amendment right to effective assistance of counsel applies to the guilty plea stage of a criminal case. (2) Until Padilla, however, the Court had not said much about the extent of counsel's constitutional duty to the client in plea negotiations. Indeed, the Court had even suggested that counsel need only advise about rights that the client would forego by entering a plea (3) and of the "direct" or court-imposed consequences that conviction would have. (4)

    The Padilla Court recognized that counsel's Sixth Amendment duty to advise the client about the consequences of pleading guilty is frequently broader and more subtle, holding that "constitutionally competent counsel would have advised [the client] that his conviction for drug distribution made him subject to automatic deportation." (5) The Court thus ventured farther than any lower federal court in extending the right to counsel to the substance of a guilty plea, and to the consequences of conviction that are not part of the court-imposed sentence. The concurring Justices, noting the "longstanding and unanimous position of the federal courts" that lawyers need not inform their clients about this "collateral" consequence of conviction, called the Court's decision "a major upheaval in Sixth Amendment law" that "will lead to much confusion and needless litigation." (6) The dissenters warned that the logic--and thus the reach--of the Court's decision could not be limited to deportation consequences "except by judicial caprice." (7)

    While the Court's substantive holding in Padilla was unexpected, its constitutional analysis was familiar. The Court examined whether defense counsel's representation "[fell] below an objective standard of reasonableness," and whether there was "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (8) The first part of this test--first applied by Strickland v. Washington (9) in 1984 to trials and by Hill v. Lockhart (10) in 1985 to pleas--is "necessarily linked to the practice and expectations of the legal community: "[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms." (11) The Strickland Court referred to "American Bar Association standards and the like," as "guides to determining what is reasonable...." (12)

    Given the Strickland Court's apparent stamp of approval, it was predictable that lower courts would rely upon ABA standards and ethics rules relating to guilty pleas to test the effectiveness of attorney performance in a variety of plea-related contexts. (13) Still, the courts stopped short of finding an affirmative obligation to advise the client about collateral consequences. (14) In Padilla, the Court took the plunge that the lower courts had worked hard to avoid, holding that "[t]he weight of prevailing professional norms supports the view that counsel must advise her client [considering a guilty plea] regarding the risk of deportation." (15) In the process, the Court reaffirmed and extended Strickland's reliance on the ABA Standards as "valuable measures of the prevailing professional norms of effective representation," (16) citing two separate volumes of the Standards in addition to a variety of practice guides and treatises. (17)

    The fact that the constitutional test of effective representation is "necessarily linked to the practice and expectations of the legal community" (18) has two important and related results. One is that the test is continually evolving. The other is that the legal community has a degree of control over what the Constitution means. The Padilla Court suggested as much when it noted, in support of its holding, how much emphasis the defense bar has placed on standard-setting and training in immigration law issues. (19)

    As might be expected, at least some of the Justices are not entirely comfortable with ceding even a limited degree of control over the constitutional test to private membership organizations. Thus, some professional codes and practice guides are accorded greater deference than others. For example, in Bobby v. Van Hook, the Court disapproved in a per curiam opinion of the lower court's reliance on a detailed set of ABA Guidelines enacted in 2003 long after the defendant's trial. (20) The Court distinguished the 2003 Guidelines from more general ABA standards in effect at the trial. (21) In doing so, the Court pointed out that the 131-page 2003 Guidelines "expanded what had been (in the 1980 [Criminal Justice] Standards) a broad outline of defense counsel's duties in all criminal cases into detailed prescriptions for legal representation of capital defendants." (22) The Court objected to treating the more detailed standards as "inexorable commands," as opposed to "'only guides' to what reasonableness means," reserving the possibility that it might "accept the legitimacy" of guidelines that did not "interfere with the constitutionally-protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions." (23) Justice Alito concurred separately to underscore his objection to according any "special relevance" to the 2003 ABA Guidelines, noting that the "venerable" ABA "is, after all, a private group with limited membership." (24) Justice Alito further noted that "[t]he views of the association's members, not to mention the views of the members of the advisory committee that formulated the 2003 Guidelines, do not

    necessarily reflect the views of the American bar as a whole." (25)

  2. THE ABA STANDARDS PROCESS

    The two most respected sources of criminal defense lawyers' professional duties to the client are the ABA Model Rules of Professional Conduct and the ABA Standards for Criminal Justice. The Model Rules are generally made directly enforceable against the lawyers who violate them by incorporating state codes of lawyer ethics. That way, the model rules are literally part of the...

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