Ethics

The Court's opinion in Padilla v. Kentucky this week confirms a number of notable trends among the lawyering cases this term.  One of those trends is the special attention that the ABA has been getting both during oral arguments (see here, here, and here) and now in the opinions. 

Of the eight opinions we have in the lawyering cases, three address the role of ABA rules and guidelines as a measure of what should be expected from a lawyer.  For example, in Milavetz (the bankruptcy case), Justice Sotomayor cited Model Rule 1.2(d), which prohibits an attorney from endorsing or participating in a client's crime or fraud, but at the same time allows an attorney to advise a client, when appropriate, about legal strategies for testing or challenging a law.  In justifying a narrowed construction of the bankruptcy advice ban, she referred to Model 1.2(d), and suggested that the federal statute not be construed to conflict with a lawyer's obligations under the Model Rule. 

In contrast, in Bobby v. Van Hook (one of the three per curiam opinions involving insufficient mitigation evidence), the Court took issue with the Sixth Circuit's reliance on a version of the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases announced eighteen years after the defendant's trial.  The Court criticized the Sixth Circuit for treating the "Guidelines not merely as evidence of what reasonably diligent attorneys would do, but as inexorable commands with which all capital defense counsel must fully comply."  Justice Alito filed a separate concurrence to "emphasize [his] understanding that the opinion in no way suggests that the [Guidelines] have special relevance in determining whether an attorney's performance meets the standard required by the Sixth Circuit."

Then consider the Court's decision in Padilla v. Kentucky.  While the Court has been reluctant to "constitutionalize" standards or norms of professional conduct (see Nix v. Whiteside, especially Justice Blackmun's concurring opinion and Justice Brennan's concurring opinion), I read Padilla as taking a curious step in that direction.  Writing for the majority, Justice Stevens explained that ABA standards "may be valuable measures of the prevailing professional norms of effective representation," and cited the ABA among others as authority for finding that "[t]he weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation."  Not surprisingly given his position in Bobby, Justice Alito in his concurrence criticized the majority for attempting "to justify its dramatic departure from precedent by pointing to the views of various professional organizations."  In his view, "ascertaining the level of professional competence required by the Sixth Amendment is ultimately a task for the courts," not organizations like the ABA.

Also noteworthy, Padilla is the second ineffective assistance of counsel case this term where the Court sided with the defendant.  The other is Porter v. McCollum.  Interestingly, both opinions open by highlighting the defendant's honorable military service, an aspect of the Porter case that generated some attention when the opinion was released.  Only one of the seven ineffective assistance of counsel cases remains to be decided:  Holland v. Florida.