The United States Supreme Court ruled yesterday in Padilla v. Kentucky that defense counsel in a criminal case is incompetent if he/she does not inform a defendant prior to entering into a plea agreement of the immigration consequences facing the defendant.

Jose Padilla, a citizen of Honduras who lived in this country for forty years was told by his counsel prior to his entering a guilty plea to trafficking in narcotics that he would not be deported. The advice was clearly wrong. The law mandate deportation for anyone convicted of trafficking.

The Court, using the Stickland standard, required that an attorney’s performance fall within the expected range of attorneys in similar cases and that the defendant not be prejudiced by the attorney’s performance.

But some courts, including the Supreme Court of Kentucky, have held that attorneys have no duty to inform the client of collateral effects of the plea. But the Supreme Court in this case, without directly deciding what collateral affects defense counsel must inform their clients of decided that in this case the odds on deportation were so great that not informing the defendant of the correct immigration consequences in effect left the client not knowing a direct effect of the plea.

While admitting that in some cases the immigration effects of a guilty plea may not be clear enough for a non-expert in immigration law to give competent advice the court said that in this case the defense counsel gave incompetent assistance by not accurately advising Padilla of the immigration consequences.

As Justice Alito pointed out in a concurring opinion the decision will lead to further litigation as to what cases will the immigration effects be too complicated to assume that a criminal defense attorney will be able to competently advise his/her client on the consequence. What about other collateral consequences, such as licensing issues, civil suits, tax issues, civil commitments, etc.

But there is no question that the better informed a defendant is about all of the consequences of a plea bargain, the better she/he can decide whether to accept the bargain. All too often clients are presented with a proposed bargain and given only a few minutes or less to decide whether or not to accept it. In these cases they do not have time to consider all of the possible ramifications of the agreement and often regret their decision with no ability to retract the plea.