Also Heard at the Courthouse

 Posted on July 01, 2008 in Uncategorized

I've had many potential clients tell me that they had taken deferred adjudication probation because their lawyers (and, in some cases, judges) had told them that deferred adjudication would not appear on their records. I've long ascribed this to miscommunication - to criminal-defense lawyers telling the literal but misleading truth about deferred adjudication (that it is not a conviction) and clients hearing what they desperately want to hear (that it won't be on their records).

But a few weeks ago I heard it, clear as a bell, from a lawyer talking to his client in the hallway in the courthouse:

This is a five-year deferred adjudication probation, which will keep it off your record.

This is such bad legal advice that I'm using it as a model for Bennett's Taxonomy of Bad Legal Advice (not that I want my name forever associated with "bad legal advice" but a good taxonomy needs a name:

1. Bad Legal Advice is incorrect.

2. Really Bad Legal Advice is incorrect and relevant.

3. Terrible Legal Advice is incorrect, relevant, and irreversible.

This lawyer's advice was incorrect: a deferred adjudication probation remains on the defendant's record forever. If the defendant successfully completes the deferred adjudication probation, he may qualify for an order of nondisclosure, which (theoretically, at least) removes the record from public view, but until that is accomplished (it may not be possible in some cases, and in most felony cases it is not possible until five years after the probation ends) those who care about a person's criminal history - I typically cite landlords and employers - will find out about the deferred adjudication and treat it the same as a conviction. So while it is the literal truth that a deferred adjudication is not a conviction for purposes of Texas state criminal law, the rest of the story is that deferred adjudication is treated as a conviction by many people whose opinions on the question matter, including federal judges (a deferred adjudication counts as a previous conviction in federal sentencing) and immigration authorities.

His advice was relevant: a client deciding whether to take the prosecutor's proffered deferred adjudication probation would do well to consider what the effect on his record, both public and governmental, would be. In fact, the creation of a persistent criminal record is a dealbreaker for many people accused of crimes.

This advice, incorrect and relevant, might have the redeeming quality of being reversible: the lawyer might realize his error, confess error to his client, and reopen the case if the client wants him to by confessing error to the court. But short of the lawyer falling on his imaginary sword, this Really Bad Legal Advice is irreversible. While misinformation concerning a matter about which a defendant is not constitutionally or statutorily entitled to be informed (such as most non-punitive consequences of a plea) may render a guilty plea involuntary if the defendant shows that his guilty plea was actually induced by the misinformation, a defendant's claim he was misinformed by counsel, standing alone, is not enough for a court to hold that his plea was involuntary.

That is, if the record doesn't show that the lawyer gave the client this bad advice, the client's not going to be able to take back his plea. And since I don't know who the lawyer was, the only way the record is going to show that the lawyer gave Really Bad Legal Advice is if the lawyer admits it. And if he doesn't admit it?

Terrible.