Tip of the Month

Tip for June 2014

Be Careful When Giving Advice Outside Your Practice Area

Recently, in Commonwealth v. DeJesus, the Massachusetts Supreme Judicial Court held that a lawyer's advice to his client in an Immigration matter was constitutionally deficient because he failed to adequately advise his client about the consequences of his plea agreement to a felony in a criminal case, which were that he would be deported. Although the lawyer advised the client that he would "face deportation" and that he would be "eligible for deportation," he did not inform the client that the legal consequence of his guilty plea would be presumptively mandatory deportation. The dissenting justice found the lawyer's advice to be adequate, commenting that to require more would be to make the criminal attorney be an immigration attorney as well. For risk management purposes, however, if a lawyer is going to give any advice, that advice should be as accurate as possible and should inform the client as fully as possible of the actual legal consequences of the client's decision. If a lawyer recognizes that another body of law will impact on the client's actions or decisions, and the lawyer knows he is not able to provide the kind of advice that is needed, the lawyer should tell the client in writing that the client needs to be advised by another lawyer who is familiar with that area of law, and that the lawyer will not be providing it. The ethics rules in most states permit a lawyer under Rule 1.2 to limit the lawyer's representation, but only if the lawyer can do so and still provide competent representation, and if the client gives informed consent. If the client cannot reasonably obtain the advice of a lawyer in the other practice area, then the lawyer who does not have experience in that area should either become competent through study, associate with another lawyer who is competent or withdraw from the representation. It is a mistake for a lawyer to give advice about an area of law about which the lawyer is not competent.