Morrison Mahoney partner Bill Smart obtained a defense verdict in a four-day legal malpractice trial in Burlington, Vermont, Chittenden Superior Court.

The plaintiff, a U.S. permanent resident/ “green card” holder from the Democratic Republic of the Congo alleged that our client, an experienced criminal defense attorney and his law firm were negligent, in bad faith, and in breach of fiduciary duty for failing to properly advise him of the potential immigration consequences of pleading guilty to domestic assault under Vermont state law.  Plaintiff was on probation for a 2010 simple assault against his then girlfriend and the mother of his children, when in 2012 he was arrested and charged with five counts of domestic assault, including one felony, against the same women. Shortly before trial he pled guilty to three counts of domestic assault and received a “to serve” sentence of 18-72 months. Several weeks later, the Immigration and Customs Enforcement Agency issued a detainer for deportation that made Plaintiff ineligible for furlough. While the guilty pleas (and therefore the detainer) were ultimately vacated due to the change of plea judge’s failure to elicit certain admissions during the colloquy (and not due to ineffective assistance of counsel), Plaintiff nearly maxed out his sentence and claimed that he spent an additional four years in prison as the result of the defendants’ negligence.

There was relative agreement that “When the law is not succinct and straightforward…  a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear . . . the duty to give correct advice is equally clear.” See Padilla v. Kentucky, 559 U.S. 356 (2010). We were successful in arguing that Plaintiff was dishonest in claiming that our client promised he would “be home in 18 months,” and “did not need to worry” about immigration. We also presented evidence, including expert testimony, that merely advising Plaintiff of the risk—rather than the certainty—of deportation was sufficient because Vermont domestic assault does not clearly meet the definition of a “crime of violence” under federal immigration law (specifically, because it’s capable of being committed with a reckless mens rea, and is not “divisible”).

In addition, we presented testimony from an expert, the prosecuting attorney, and Plaintiff’s probation officer that Plaintiff was unlikely to prevail if the underlying criminal case had been tried, and that regardless of the potential immigration consequences and their impact on Plaintiff’s ability to furlough, the State was unlikely to agree to a lesser charge or alternative sentence structure that would have resulted in Plaintiff serving less time in prison.