McDermott Files US Supreme Court Amicus Brief on Behalf of the American Bar Association regarding Sixth Amendment Rights of Criminal Defendants


WASHINGTON, DC (March 1, 2017) — McDermott Will & Emery LLP, as counsel to the American Bar Association (ABA), has filed an amicus curiae brief in the US Supreme Court in Jae Lee v. United States, urging the court to reverse the US Court of Appeals for the Sixth Circuit in a case regarding the scope of Sixth Amendment protections for immigrant defendants in criminal cases.

Jae Lee v. United States is an appeal of a Sixth Circuit ruling that a long-time legal permanent resident and businessman who pled guilty to a first-time drug offense should be deported, even though his lawyer incorrectly assured him that his guilty plea would not lead to his deportation. Mr. Lee emigrated from South Korea with his family in 1982, as a 13-year-old boy, and has lived legally in the United States for decades. In 2009, the successful restaurateur was charged with possession of ecstasy with intent to distribute. Based on his lawyer’s assurances that his years living legally in the United States, his strong familial and business ties to this country, and his lack of a criminal history made it “impossible” for him to be deported, Mr. Lee pleaded guilty. When Mr. Lee learned that his lawyer was wrong, he sought to vacate his conviction, claiming ineffective assistance of counsel. However, a federal judge in Tennessee concluded there was no prejudice, because a decision to proceed to trial would have almost certainly resulted in a guilty verdict, a longer prison sentence, and deportation. The Sixth Circuit affirmed. The federal courts of appeal have disagreed about whether such defendants who receive bad legal advice and plead guilty — not knowing that their pleas will lead to deportation — are prejudiced by such ineffective assistance of counsel, when there is strong evidence of guilt.

The ABA brief cites, among other authorities, the ABA Standards for Criminal Justice with respect to a lawyer’s duty to provide competent representation – including the duty to advise a non-citizen defendant about immigration consequences during plea negotiations. The brief argues that a defendant who is deprived of competent legal advice about whether a conviction carries a risk of deportation can be prejudiced, notwithstanding the evidence of guilt, because he cannot make a voluntary and informed decision about whether or not to accept a plea offer and because he is deprived of the ability to negotiate a more favorable plea agreement in the first place.

The amicus brief was written by McDermott partners A. Marisa Chun and Paul M. Thompson and associates Erika N. Pont and Matthew M. Girgenti, with assistance from McDermott Senior Counsel and University of California Hastings law professor Rory K. Little.

Oral argument at the Supreme Court is scheduled for March 28, 2017. The ABA brief written by the McDermott team can be viewed here.

About McDermott Will & Emery
McDermott Will & Emery is a premier international law firm with a diversified business practice. Numbering more than 1,000 lawyers, we have offices in Boston, Brussels, Chicago, Dallas, Düsseldorf, Frankfurt, Houston, London, Los Angeles, Miami, Milan, Munich, New York, Orange County, Paris, Rome, Seoul, Silicon Valley and Washington, DC. Further extending our reach into Asia, we have a strategic alliance with MWE China Law Offices in Shanghai.

About the American Bar Association
With more than 400,000 members, the American Bar Association is one of the largest voluntary professional membership organizations in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

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