Virginia Lawyers Weekly VA Lawyers Weekly
Virginia prosecutors may have an ethical duty to avoid plea bargains that could lead to defendants’ deportation under new guidance from the Virginia State Bar, but only in limited circumstances.
A final VSB legal ethics opinion arising from so-called Padilla concerns about misdemeanor plea bargains would apply only when a prosecutor has been informed that the defendant is a noncitizen subject to deportation.
Padilla is a 2010 U.S. Supreme Court decision that immigrant defendants have a constitutional right to accurate advice from their lawyers about the immigration consequences of their criminal cases.
Faced with complaints that some defendants in general district court were accepting plea deals that exposed them to deportation without warning, the VSB Standing Committee on Legal Ethics requested comments on proposed LEO 1876.
As proposed, the opinion would have applied when a prosecutor “knows” that an unrepresented defendant was a noncitizen subject to deportation. The final version would apply when a prosecutor “has been informed” that a defendant is a noncitizen.
The revised – now final – LEO 1876 also expressly offers a “safe harbor” when a prosecutor requests that a judge advise the defendant about the possibility of immigration consequences.
“The opinion is a useful step in the right direction, but more needs to be done,” said Victor M. Glasberg, the Alexandria civil rights lawyer who requested the guidance from the ethics committee.
“Little more can be expected to be forthcoming from prosecutors, who are content to wash their hands of the collateral consequences of the convictions they secure,” Glasberg said. He turned his focus to judges.
“Hopefully the bench, which is supposed to be concerned with due process and fairness, will see fit to revisit the issue and adopt mandatory Padilla warnings such as are now given in federal court,” Glasberg said.
Court forms at issue
Glasberg said he intended to write to Chief Justice Donald W. Lemons of the Supreme Court of Virginia about the issue, since the courts would generate the standardized forms and recordings proposed by Glasberg.
Glasberg took up the cause of unwitting deportation exposure after reports surfaced of Prince William County general district judges approving hastily arranged plea bargains that put defendants at risk of deportation.
He wrote letters to a now-retired judge and lobbied for a warning on a court form.
Virginia prosecutors, who objected to the original LEO language, welcomed the limitation of prosecutors’ duties under the finished version of the guidance document.
“The final LEO 1876 is much more particularized than the original proposed version,” said Nancy G. Parr, president of the Virginia Association of Commonwealth’s Attorneys.
“It provides more guidance by listing the many circumstances that must exist for there to be an allegation of an ethical violation by a prosecutor,” Parr said.
The hypothetical used for the legal ethics opinion describes a situation where a prosecutor is contacted by a federal immigration official who requests the prosecutor to obtain a conviction which would subject a defendant to deportation.
The prosecutor offers a no-jail deal knowing that the defendant is not entitled to court-appointed counsel and that the judge skips any kind of questioning about immigration consequences.
Such a plea bargain is “no bargain at all” with the likelihood of deportation, the ethics panel said.
The panel, however, removed a paragraph that referenced a prosecutor’s duties as a “minister of justice” with obligations to ensure “procedural justice” in the criminal process.
Three immigrant advocacy groups earlier urged appointment of lawyers for all unrepresented indigent criminal defendants suspected of foreign birth.
The ethics committee said the Rules of Professional Conduct do not impose a duty for prosecutors to ensure such representation and that “such a requirement would deviate from the present statutory scheme governing an indigent defendant’s entitlement to court-appointed counsel.”
Heidi Altman, a contact person for the advocacy groups, declined comment on the final version of LEO 1876.
