Archive for the ‘Ethics’ Category.

Don’t Ignore the Ethics

shutterstock_218204401Judge Hanen recently refused to lift his injunction blocking the implementation of the president’s expansion of the Deferred Action for Childhood Arrivals (DACA) as well as the new Deferred Action for Parents of Americans (DAPA) program.

Many are following the case closely, no surprise, as it has implications for millions of people and potentially thousands of AILA’s members.

What hasn’t been covered in the press quite as much is that Hanen, in a companion order to his refusal to lift the injunction, chastised DOJ lawyers for violating Rule 3.3 of the American Bar Association Model Rules of Professional Conduct and corresponding state rules relating to a lawyer’s duty of candor to a court or tribunal.

As Chair of the AILA Ethics Committee, I worked with my fellow committee members to take a harder look at Judge Hanen’s accusations in the context of Rule 3.3 and complex immigration law and policy in a hotly contentious and politically charged case. At issue is whether a judge should be so quick to accuse a lawyer for violating Rule 3.3 when there is a misunderstanding about the scope of what the injunction blocked and did not block. I encourage you to follow this link to the full document.

But consider this: while the lawsuit is wending its way forward on three tracks at the moment, even if the Fifth Circuit reverses, the accusations of unethical conduct stemming from the companion order may still linger, and it is important that we shine some light on it.

Written by Cyrus Mehta, Chair, AILA Ethics Committee

California on Immigration—Great Steps Forward and New Requirements for Immigration Attorneys

shutterstock_89347900Governor Jerry Brown signed several bills last week that will make a huge difference for many immigrants.  “While Washington waffles on immigration, California’s forging ahead,” Governor Brown said. “I’m not waiting.”  The bills are mostly positive, but one creates new requirements for AILA members practicing in California.

First, undocumented immigrants in California will be able to obtain driver’s licenses which is great news, not just for immigrants and their families, but also for many law enforcement agencies and insurance companies who supported such a measure for safety and security reasons.  This isn’t likely to be instantaneous; according to reports, the licenses are expected to become available to immigrants no later than January of 2015.  However, there is talk that the licenses could become available as early as late 2014.  They also won’t be just like other licenses, instead they will have a special designation on the front and a caution that the document is not a form of identification at the federal level; a sort of scarlet letter.  California isn’t alone; my state joins ten others that already had similar measures.  But California is the biggest state to pass a bill like this; an estimated 1.4 million drivers are expected to apply for the licenses during the first three years.

Governor Brown also signed the TRUST Act—which will prohibit local law enforcement from detaining immigrants charged with minor crimes in order to let federal authorities know about them for immigration violations.  If an immigrant were charged with a serious offense, then they could be held for 48 hours and transferred to federal authorities for potential deportation.  We’re delighted that Governor Brown signed the TRUST Act, along with bills allowing undocumented immigrants to obtain law licenses and one that criminalizes employers who “induce fear” by threatening exposure of a person’s status as someone who entered the country illegally.  AB 524 prevents employers from using the reporting threat to stop workers from complaining about workplace abuses, unsafe working conditions and wage theft. SB 666 allows an employer’s business license to be suspended or revoked for retaliation against workers based on immigration status.  Governor Brown also vetoed a bill that would have allowed noncitizens to serve as jury members.

So those were all big steps forward for immigrants and advocates.

Governor Brown also signed AB1159, a bill that was of tremendous concern to AILA.  The law’s intention is to protect potential victims of immigration fraud.  At its onset, AB1159 sought to regulate the practice of Immigration Law in California.  AILA raised major concerns about the bill earlier in the summer when the state legislature was taking up the measure, including the fact that some requirements could endanger attorney/client privilege, make it more difficult if not impossible for lawyers to offer pro bono or low cost services, and even prevent lawyers from advising clients on how changes in the law might impact their case or how to prepare for change.

Due to the staunch advocacy led by the California Chapter Chairs, AILA’s Executive Committee, and many AILA members, AILA was able to correct the misguided efforts of the California State Bar and the bill’s authors. After long negotiations, the bill’s author agreed to take out the onerous requirements against Immigration Attorneys, while continuing to tighten requirements against immigration consultants and notarios.

AB 1159 prohibits Immigration Attorneys from entering into contracts relating to Immigration Reform before the law is actually signed into law by the President.  AILA carved out an exception for preparatory and investigatory work, like requesting FOIA’s, background checks, and post-conviction relief.  If money has been collected by an attorney for a law that does not exist, the attorney must refund the money or place it in an attorney/client trust fund.

Additionally, AB 1159 requires all attorneys that enter into contracts relating to an Immigration Reform Bill to inform the client where they can report complaints.  The California State Bar will create the document, translate it into various different languages, and post it on their website.  After reaching this compromise, AILA withdrew its opposition to the bill.

The bill also increased the amount of bond that immigration consultants must carry from $50,000 to $100,000 as of July 1, 2014.  It also prohibits the use of the term “notario,” which has been misconstrued as someone who is qualified to give legal advice.  The bill also provides that a person who violates the ban on the use of the term “notario” is subject to a civil penalty of up to $1,000 per day for each violation.

While the bill is far from perfect, AILA remains at the forefront of promoting ethical lawyering and preventing the unauthorized practice of law.  AILA has been advocating against the unauthorized practice of law way before it became politically expedient to do so.  AILA will continue to monitor other state legislatures for similar bills and reach out to legislatures to ensure the best method in which to combat immigration fraud at all levels, including the new fraud frontier – internet notarios or “net-tarios.”

Trust Matters

Written by: Tony Weigel, AILA Media-Advocacy Committee

I have participated in several meetings with Congressional staffers about immigration policy since 2006.  I have had the same thoughts and questions about these interactions every time.  I hoped to make some minimal impact, naïve as that may seem.  Afterwards, I mainly focused on the question of whether or not I had just wasted my time?  Was this person truly engaged?  Did they make some note of the issues discussed?  Would they share anything meaningful with their member of Congress?  Most importantly, did my interaction with this politician’s representative engender any trust?

I suspect that interactions and agreements among politicians and candidates are somewhat similar.  If they are, you have to wonder what goes on behind the scenes to garner endorsements.

Following the New Hampshire Republican primary, two separate endorsements of candidate Mitt Romney caught my attention.  On January 11th, the Romney campaign announced that Kansas Secretary of State Kris Kobach endorsed his campaign, welcomed him to the team, and looked forward to working with him.  On that same day, it was reported that the Romney campaign was running Spanish-language campaign advertisements in south Florida featuring Congressional Representatives Ileana Ros-Lehtinen and Mario Diaz-Balart and former Congressman Lincoln Diaz-Balart.

It is hard to imagine how the Romney campaign managed to pull this off.  On one hand, you have three of only eight House Republicans who voted for the December 2010 version of the DREAM Act (H.R. 5281).  On the other, you have a politician that has opposed the DREAM Act at every turn, labeling it an “amnesty.”  Politician Kobach has even taken the extreme position of labeling Representative Lamar Smith’s draconian, E-Verify mandate bill, H.R. 2164, as yet another amnesty.

It would be interesting to know more about how these two diverse endorsements came together.  Did these three Florida Republicans know about the pending Kobach endorsement?  If they knew their endorsement would run concurrently with Kobach’s, exactly how did this impact their respective decisions to endorse Romney and participate in the Spanish language ad?

Regardless if these Florida Republicans knew or did not know, it is hard to imagine how one can reconcile policy differences as distinct from each other as the cold winter streets of Topeka, Kansas, and the sun-splashed beaches of Miami.  Candidate Romney has promised to veto the DREAM Act and fully endorsed Kobach’s policies.  These policy positions stand in stark contrast to those supported by these Florida Republicans and a majority of Republicans, as expressed in a recent Fox News poll.

We may never know what happened or why, but something generated mutual trust among an unlikely group of allies.  Given the incomparable divide on immigration policies, time will tell which side will win out over the other in a prospective Romney Administration.

Ethics Rules, The Economy, and the Practice of Law

The New Jersey Supreme Court just sanctioned an Immigration Lawyerfor sharing fees with a paralegal. This is a good lesson to be reminded of, particularly in these difficult economic times. As attorneys we are bound by higher standards than regular business people in the context of business development. Among the many “special” rules we must live by is one that prohibits fee sharing with non-lawyers. Sometimes that means we cannot do things that make economic sense.

We have to balance our desire to provide for our families, with the rules we must live by. We all seek to not only provide the most zealous representation to our clients, but also to make a living while doing so. More than 60% of AILA members are solo practitioners or part of small law firms. That means that we are the engine that drives our own economic success.

When times are lean, some lawyers, unfortunately forget their ethical obligations and how deep those obligations run. A simple reminder, every now and then, of what those obligations entail is not a bad thing.
This is where it is also important to understand the ethics rules in the jurisdiction where you are practicing. There are many AILA members who practice law in a state in which they are not licensed, on the theory that they are practicing federal law. While I personally disagree with that, I will leave that discussion for another day. One thing that is clear is that if a lawyer is practicing law, he is subject to the disciplinary rules in his “home” barred state, as well as the state in which he principally practices. Many of us know that ethics rules vary, sometimes greatly, state by state. This is particularly true as to both fee sharing with attorneys and with advertising. To avoid any issues with the Bar of the state in which you are practicing, read the ethics rules again to make sure you are doing what is required.
As we all move forward in the new economy, lets keep the standards of AILA lawyers high, and be the example to the rest of our colleagues in the bar.

New York Attorney General Cuomo Gets Restitution For The Victims Of UPL

By Deborah Notkin, AILA Past President

Attorney General Andrew Cuomo has successfully carried out a crusade against the fraud and deception of “immigration consultants” who take advantage of unknowing and vulnerable immigrants. At a recent media conference, Cuomo indicated that his office is seeking civil remedies, at least initially against those involved in immigration assistance fraud because the first goal is to get restitution for victims.

The latest victory in the fight against immigration fraud and victimization was announced by Cuomo’s office on March 1, 2010. The Attorney Generals’ Office has won a court judgment of more than $3 million against a “consultant” in Queens who has targeted and defrauded immigrants. In this case, the “consultant” routinely charged a retainer of $7,000 with fees often reaching up to $15,000 per person for the promise of permanent residence. The consultant wrongly claimed that she could get permanent resident status through alleged relationships with government officials. Of course, the services were never performed and the consultant routinely refused to give refunds or return documents.

As a result of Cuomo’s lawsuit, the New York Supreme Court has ordered the consultant to pay full restitution to 37 families who came forward and demonstrated that they were defrauded by this consultant. An additional $2.7 million in penalties was imposed for engaging in the unauthorized practice of law and misrepresentation of services that could be performed. The consultant is also permanently restricted directly and indirectly from engaging in the business of immigration-related services.

Over the past several months, other consultants have been shut down and active investigations continue. The fight to end this blight on immigrant communities in New York City and State continues and serves as an example for all who are committed to fighting immigration fraud and the unauthorized practice of law.

New York State Attorney General Andrew Cuomo Steps up to the Plate on Combating the Unauthorized Practice of Law

By Deborah Notkin, AILA Past President
Attorney General Andrew Cuomo has been combating the unauthorized practice of law for the last year and a half and has shut down many small outfits preying on immigrant communities. But on January 14, 2010, he took down the big fish by obtaining a restraining order preventing them from providing legal assistance on immigration matters.

The International Immigrants Foundation and their “legal wing”, The International Professional Association have been preying on the immigrant community for over 20 years. Two AILA members, National UPL Committee member Jason Abrams and Past AILA President Allen Kaye have been trying to rid the community of this parasite for many years. They were in the forefront of the final effort, providing important evidence to the Attorney General. Other, newer AILA members were instrumental in supporting the Attorney General’s complaint with detailed affidavits.

The International Immigrants Foundation’s President, Eduardo Juarez, had a column in El Diario as well as a spot on 93.1 FM, a major Spanish speaking radio station. He is not an attorney. In the past, he had fooled even some in the New York City government and had some close relations there – attending planning meetings, glad-handing celebrities, and holding an annual parade down Manhattan’s Sixth Avenue. His fees were at the higher end of the scale, way beyond those a registered 501(c)(3) organization like his should have entertained, and to make matters worse, he charged a monthly membership fee during the course of pending immigration matters.

New York does not have a perfect law regarding the unauthorized practice of law, but with what we have, and the determination of the Attorney General’s Civil Rights Bureau and Charities Bureau, this predator is being shut down. The lesson here is that others concerned about the unauthorized practice of law can go to their attorneys general and use the heroic example of Andrew Cuomo and his staff to show it can be done. AILA’s National UPL committee has an ongoing effort to reach out to various attorneys general, but the words of individual AILA members always help.

Now, the task of the New York Bar is to step up to the plate to assist Cuomo’s office in finding competent representation for those with ongoing cases.

Regulating Tax Preparers–A Clarion Call For USCIS

Any immigration lawyer who handles immigration court cases, particularly those involving claims for cancellation of removal, knows the problems caused by badly, and at times fraudulently, prepared tax returns. Most immigrants want to “pay” their taxes. They go to the local notario who instructs them to do things such as claiming “Head of Household,” when in fact they are married and not eligible for this benefit, or has them claim their cousins in Outer Whatzitstan as dependents. Most times, from my experience, these tax returns are filed in ignorance by the immigrant, but with full knowledge by the preparer that the return is fraudulent. But it is the immigrant who pays the price for the fraud in front of the immigration judge.
It seems the IRS has finally decided that enough is enough. The IRS announced yesterday that it will begin to regulate all preparers of tax returns. As many as a million of them! Now ask yourself. If the IRS can do this, why is the USCIS NOT doing this? As attorneys we are already regulated by not only our state bars, but by the government. Yet, the USCIS allows “notarios” to continue to file fraudulent applications, hurting immigrants and creating an unreliable system of adjudication, simply because it will not dedicate the resources necessary to cracking down on these unregulated and unlicensed filers.
Let me make an open invitation to the USCIS (and USICE if they are reading). Announce that you are going to actually enforce your regulations as to who can file petitions on behalf of applicants. Make 8 C.F.R 292 actually mean something. Right now it is a hollow regulation. Work with the U.S. Attorneys to start prosecuting the preparers of these applications. I believe that immigrants are beginning to wake to the understanding that they have been ripped off for years by these so-called “notarios” (I used the Spanish word, but the concept reaches across all cultures). You will have your witnesses. AILA would be happy to work with you to put a stop to the culture of fraud that has been allowed to perpetuate itself.
A prime example is here in Atlanta. We have an immigration “preparer” who has actually been jailed once for violating the State’s unauthorized practice of law provisions, is known to the USCIS, actually submits Forms G-28 with his filings (and checks “Other”), charges more than many attorneys charge for application processing, and the USCIS accepts his filings and gives him notice of the cases!!!! Come on USCIS. Its about time that you did what was right for immigrants. Slow down your witch hunt for the needle in the haystack of H-1B or L-1 fraud, and focus on these unauthorized and unregulated immigration “preparers.” These are easy prosecutions, and you will actually help immigrants who many times WANT to do the right thing. You will stop immigrants from becoming victims of fraud. You will also begin to restore some integrity to your own adjudicatory system.
I am holding my breath here.