Criminal defense lawyers don’t have to take into account what a guilty plea could cost their clients in a civil lawsuit, a federal appeals court has ruled.
The U.S. Court of Appeals for the Third Circuit this month rejected a lawsuit by Nita and Kirtish Patel, who tried to extend protections to immigrants in danger of deportation to civil litigation. Criminal defense lawyers are required to advise non-citizens of the effects of guilty pleas on their immigration status, but the Third Circuit would go no further.
The Patels forged medical documents to bill the United States for services and face millions of dollars of liability under the False Claims Act – a law that allows whistleblowers and state and federal government to sue when governments are over-billed.
“(I)f we were to hold that the Sixth Amendment requires defense counsel to advise a client about potential civil liability under the False Claims Act, we would be recognizing a new rule of constitutional law,” the Third Circuit wrote.
The Patels offered mobile diagnostic test services at Biosound Medical Services and Heart Solution, and Kirtish falsely told Medicare that a licensed neurologist would perform neurological diagnostic testing.
Kirtish wrote diagnostic reports, and Nita forged the signature of a physician. They earned at least $4.3 million, with about $1.7 million of it coming from Medicare.
But in 2014, a whistleblower who had worked for the Patels filed a False Claims Act lawsuit in New Jersey federal court. This alerted prosecutors who soon arrested them.
They each pleaded guilty to a count of healthcare fraud with the agreement there would be no more criminal charges. Nita got 78 months in prison and Kirtish got 100 months, along with restitution of $4.8 million.
The federal government has the option to intervene in FCA cases filed by whistleblowers, and it did. It used the guilty pleas as evidence of the Patels’ liability.
Awards in FCA cases are tripled as a punishment. A judge ordered $5 million in damages, plus another $2,750,000 in civil penalties.
Nita and Kirtish moved to vacate their criminal sentences because their lawyers had never informed them of their potential civil liability when pleading guilty. They pointed to a 2010 decision – Padilla v. Kentucky – which held criminal lawyers had to caution immigrants on what a guilty plea could do to their status.
Criminal lawyers had to advise only of “direct” consequences. The Supreme Court in Padilla didn’t classify deportation as a “collateral” consequence because removal from the country is a “particularly severe penalty… intimately related to the criminal process.”
Other circuits have held the Padilla ruling is directed only at deportation.
“We read Padilla the same way,” the Third Circuit said. “It did not disturb the lower courts’ rules about whether the Sixth Amendment requires attorneys to inform their clients of a conviction’s collateral consequences.
“Instead, it announced that those courts’ rules are inapplicable to one specific consequences: deportation.”
