SIXTH ANNUAL CRIMINAL LAW SYMPOSIUM: THE SIXTH AMENDMENT: PANEL TWO: THE RIGHT TO COUNSEL AT TRIAL: WHAT ARE DEFENSE LAWYERS FOR? LINKS BETWEEN COLLATERAL CONSEQUENCES AND THE CRIMINAL PROCESS Skip over navigation
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Copyright (c) 2012 Texas Tech University School of Law
Texas Tech Law Review

SIXTH ANNUAL CRIMINAL LAW SYMPOSIUM: THE SIXTH AMENDMENT: PANEL TWO: THE RIGHT TO COUNSEL AT TRIAL: WHAT ARE DEFENSE LAWYERS FOR? LINKS BETWEEN COLLATERAL CONSEQUENCES AND THE CRIMINAL PROCESS

Fall, 2012

Texas Tech Law Review

45 Tex. Tech L. Rev. 151

Author

Gabriel J. Chin*

Excerpt



The content of a lawyer's duties under the Sixth Amendment is dynamic, changing with developments in custom and law. Custom is important because competence is measured by compliance with "[p]revailing norms of practice." 1 If many or most lawyers fail to do something that very good lawyers regard necessary, the omission's ordinariness makes it competent for Sixth Amendment purposes. 2 However, professional norms advance. For example, if a norm arises among reasonably competent attorneys that clients should be warned about the possibility of deportation, ultimately all attorneys may become obligated to do so, as the Supreme Court recently held in Padilla v. Kentucky. 3



The law also shapes counsel's duties. 4 For example, counsel has no duty to investigate to find evidence that would be inadmissible. 5 However, if legal developments render new categories of evidence admissible, 6 an obligation to find that evidence may spring into existence. 7 Similarly, the Court's recent decisions in Lafler v. Cooper and Missouri v. Frye recognized the current importance of disposing of cases through guilty pleas, rather than trials, and required counsel to be effective in that context, as well as in trials. 8



This Essay proposes that a combination of legal developments in courts and legislatures and of changing professional customs is giving rise to a new obligation of counsel to address collateral consequences. 9 I advocated for this development ten years ago, but I recognized that then-existing law recognized almost no connection between defense counsel and collateral consequences. ...
 
 
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