For a full overview of ethical and malpractice issues facing immigration attorneys, please see “The Immigration Lawyer’s Nightmare” by Sherry K. Cohen published January 31, 2013 in the New York Law Journal[1].
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Attorneys are regulated by the courts and by professional bar associations that interpret and apply ethics rules, federal regulations, and federal law. The American Bar Association has promulgated Model Rules of Professional Conduct, which have largely been adopted by most states. The Executive Office for Immigration Review (EOIR) has promulgated its own Federal Rules of Practitioner Conduct, and the Immigration and Nationality Act, Code of Federal Regulations,[2] and other federal statutes contain criminal provisions governing attorney conduct. Attorneys who fail to conform their conduct to these standards and laws are subject to a variety of professional disciplinary measures, including disbarment.[3]
Under federal regulations, an attorney can be disciplined for providing immigration assistance that involves excessive fees, for improperly soliciting business, for frivolous arguments or applications, or for facilitating the unauthorized practice of law by delegating control of a case to a non-lawyer.[4]
Because disciplinary committees rarely initiate investigations absent complaints, and because immigration judges may only submit complaints to the Board of Immigration Appeals, the onus for reporting attorney misconduct at the local level falls on immigrant clients, their advocates, and their representatives.
Examples of Typical Immigration Attorney Misconduct
Typical ways in which an attorney may have engaged in misconduct are when they:
- Did not let clients know about an upcoming court date or other appointment;
- Did not let the court know about a client’s eligibility for relief, or told the court that the client qualified for something when that wasn’t the case;
- Did not submit documents, briefs, or any other required materials on time;
- Did not keep the client up to date on important issues or deadlines affecting the case;
- Did not prepare the client for trial;
- Did not follow up a crucial line of questioning at trial or preserved an issue for appeal; or
- Did not properly explain the consequences of a particular course of action.[5]
No one single instance of these examples is sufficient to lead to discipline, but repeat offenders could and should be disciplined.
For single or less egregious offenses, attorneys may be disciplined privately rather than publicly, in which case the attorneys will likely see their malpractice insurance premiums rise and may find themselves unable to gain admission to other jurisdictions. Public discipline often involves reprimand by the courts, the imposition of corrective measures, and/or a bar on the ability to file new cases.
More egregious violations by attorneys include:
- Accepting fees for work that is not performed;
- Not appearing at court dates or other appointments;[6]
- Not providing a copy of the file to the client upon request; or
- Filling out and submitting forms on behalf of a client in a manner that is clearly fraudulent.
Systematic evidence of attorneys treating their clients in a rude or uncivil manner reflect on an attorney’s fitness to practice and may result in public censure for the firm and/or individual attorneys.[7]
If a client believes the attorney pursued a completely meritless legal remedy or otherwise neglected the case, the fees charged for such may be called into question. If the complaint is a pure fee dispute, the attorney may be subject to mandatory arbitration before any disciplinary procedures.
Matter of Lozada
A complicating factor in determining the validity of claims regarding ineffective assistance of counsel in immigration court proceedings is the BIA’s decision in Matter of Lozada, 19 I. & N. Dec. 63 (BIA 1988). In that case, the BIA held that to prevail on such a claim, the client (“Respondent”) must meet certain requirements, including that a grievance has been filed with the appropriate authorities.
It is a common scam in and of itself for an attorney to promise they can “fix” what a previous attorney did wrong and thereby get rid of a deportation order. Often, there are no merits to such a promise, but the unfortunate side effect is that, in order to show compliance with Lozada, complaints get filed frequently and overwhelm disciplinary bodies unfamiliar with the intricacies of the practice of immigration law.
Attorneys and Unauthorized Practice of Law
Any attorney in good standing with the bar of any state can practice immigration law nationwide. Attorneys who improperly associate with non-attorneys are engaging in the unauthorized practice of law (UPL) and are subject to public discipline by the appropriate Departmental Disciplinary Committee (DDC).[8] Attorneys engaging in UPL may be suspended [9] and/or subject to investigation by law enforcement authorities.[10] Non-attorneys engaging in UPL may be referred to the appropriate office of the district attorney or attorney general.
Attorneys shall not:
- Inadequately supervise a paralegal or other support staff, who may be using the attorney’s name or office for their own business purposes;[11]
- Form a partnership with non-lawyers;[12]
- Split fees or pay a referral fee (including commission) to any non-lawyer. [13]
Inadequate supervision occurs when the attorney merely reviews an application or petition prepared by a non-attorney. To avoid this, the attorney must reveal his or her name on the form and also include an additional signed form designating representation before the appropriate court or agency.[14]
There is no mens rea requirement for a finding that an attorney engaged in UPL.
How to File a Complaint Against An Attorney
Allegations of professional misconduct against attorneys should be filed with the appropriate DDC. Allegations of misconduct including working with or for non-lawyers (such as notarios, travel agents, independent paralegals, etc.) who may be engaged in the unauthorized practice of law should be referred to the appropriate office of the district attorney or attorney general, as in many states UPL and/or the act of falsely holding oneself out as an attorney are crimes. The DDC and law enforcement agency may enter into a cooperative arrangement or parallel investigation where appropriate.
The Disciplinary Process
Complaints undergo an initial screening at the DDC, then the complaint is either closed or referred to a staff attorney for investigation. Often, complaints are closed for jurisdictional purposes. A complaint is more likely to be referred if there is a history of complaints against a particular attorney. If the case is referred, then the attorney is notified and has a limited time to respond. The case is then screened a second time, during which the attorney’s answer is forwarded to the complainant for his or her reply.
Reciprocal Discipline
Under the doctrine of reciprocal discipline, once an attorney has been publicly disciplined within the Second Circuit Court of Appeals, the attorney may be further disciplined by the state courts and/or by the Department of Justice. For example, the Executive Office of Immigration Review and/or the Department of Homeland Security can bar the disciplined attorney from practicing immigration law at federal administrative, trial and appellate levels.
[1] New York Law Journal, Professional Discipline: The Immigration Lawyer’s Nightmare, Sherry K. Cohen, January 31, 2013.
[2] Professional Conduct for Practitioners–Rules and Procedures: 8 CFR § 292.3
[3] For the rules that regulate New York lawyers, please see the Rules of Professional Conduct for the New York State Unified Court System, at http://www.nysba.org/Content/NavigationMenu/ForAttorneys/ProfessionalStandardsforAttorneys/NYRulesofProfessionalConduct4109.pdf
[4] 8 C.F.R.§ 1003.102 (2012)
[5] New York Law Journal, Professional Discipline: The Immigration Lawyer’s Nightmare, Sherry K. Cohen, January 31, 2013.
[6] Before immigration court or any federal court, an attorney has an obligation to appear until released by the judge, regardless of whether they have received payment for the appearance.
[7] Matter of Wilens and Baker, 9 A.D.3d 213 (1st Dept. 2004)
[8] New York State Unified Court System Rules of Professional Conduct, Rules 5.3 – 5.5
[9] In re Thalasinos 2014 N.Y. Slip Op. 01680 (N.Y. App. Div. 2014); Matter of Rodkin, 21 AD3d at 112-113; In re Rodkin, 598 F.3d 111 (2010), Matter of Muto, 291 AD2d 188 (1st Dept 2002).
[10] Matter of Muto, 291 A.D.2d 188 (1st Dept. 2002); Matter of Rodkin, 21 A.D.3d 111 (1st Dept. 2005); Matter of Lefkowitz, 47 A.D.3d 326 (1st Dept. 2007).
[11] Rule 5.4(d), See also New York State Bar Association Committee on Professional Ethics, Opinion 1038 (12/6/14)
[12] Rule 5.4(b)
[13] Rule 5.4(a).
[14] See Appendix XX, Forms G-28, EOIR-27 and EOIR-28
Protecting Immigrant New Yorkers 