VSB Standing Committee On Legal Ethics Seeking Public Comment On Legal Ethics Opinion 1876

pending review by the Ethics Committee


RICHMOND - Pursuant to Part 6, § IV, ¶ 10-2(C) of the Rules of the Supreme Court of Virginia, the Virginia State Bar’s Standing Committee on Legal Ethics (“Committee”) is seeking public comment on proposed advisory Legal Ethics Opinion 1876, Ethical Obligations of a Prosecutor who Plea Bargains with an Unrepresented Defendant whom the Prosecutor Knows is a Noncitizen Subject to Deportation Under Immigration Law Upon Conviction of the Offense Which is the Subject of the Plea Offer.

In this proposed opinion a prosecutor offers the defendant a plea to a reduced offense, which does not require the appointment of counsel, knowing that the defendant is a non-citizen that may be subject to deportation if the defendant accepts the offer and pleads guilty.  The question presented is whether the prosecutor under these circumstances must inform the unrepresented defendant of the immigration consequences if convicted of the misdemeanor offense if the court does not so advise the defendant.   

In this proposed opinion, the Committee concludes that while the prosecutor does not have an affirmative obligation to advise the defendant of the collateral consequences of a criminal conviction the prosecutor nonetheless takes advantage of the unrepresented defendant and violates Rule 3.8(b) if he

  1. knows that the defendant is a noncitizen;
  2. maintains a criminal charge which does not entitle the defendant to court-appointed counsel;
  3. knows that conviction of the crime to which a plea offer pertains is a deportable offense;
  4.  knows that the court does not conduct plea colloquies which include an advisement regarding the defendant’s opportunity to understand, or to obtain legal advice, regarding immigration law consequences of the plea; and
  5. offers a disposition of a criminal charge to the unrepresented defendant in exchange for a guilty plea when the “plea bargain” omits reference to the defendant’s potential need to obtain legal advice regarding immigration law consequences, and identifies only the disposition to be imposed by the criminal court.

view proposed LEO 1876 (PDF file)

Inspection and Comment

The proposed advisory opinion may be inspected at the office of the Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, Virginia 23219-3565, between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday.  Copies of the proposed advisory opinion can be obtained from the offices of the Virginia State Bar by contacting the Office of Ethics Counsel at (804) 775-0557, or can be found at the Virginia State Bar’s website at https://www.vsb.org.

Not later than January 5, 2015, any individual, business, or other entity may file or submit to Karen A. Gould, at publiccomment@vsb.org, the Executive Director of the Virginia State Bar, a written comment in support of or in opposition to the proposed advisory opinion.




Updated: Jan 21, 2015