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  • Article: Be Careful and Look Both Ways Before You Engage a Lawyer By Peter A. Allen

    Be Careful and Look Both Ways Before You Engage a Lawyer

    by


    The practice of immigration law is shaped to a large extent by a set of admonitions, requirements, orders, options and prohibitions regarding the level of professional responsibility which a owes to his/her client. At the state level, a lawyer's conduct is controlled by laws that determine the conditions under which he can be licensed, as well as by a code of ethical conduct whose violation can lead to the imposition of professional discipline that could include the permanent temporary loss of license. In Massachusetts the ethics rules are known the Massachusetts Code of Professional Responsibility (MCPR) and is administered by the Massachusetts Board of Bar Overseers, (BBO). The BBO has been designated as the tribunal responsible for reviewing complaints concerning the ethical conduct of practicing lawyers registered with the Supreme Judicial Court of Massachusetts. In every state there is a similar body although its name and procedures may differ.

    In addition to keeping clients informed of the latest developments in their matters, the immigration lawyer as is the case with all lawyers must exercise special care regarding communication with foreign nationals whose ability to communicate in English is compromised by lack of formal education or infirmities of age or other conditions. In this regard, lawyers have a special responsibility to ensure that the client understands to the best of his/her limited ability, the nature of what is being communicated.

    A lawyer, regardless of his/her area of practice plays a number of roles in the performance of their professional responsibilities. The lawyer is a representative of clients, a public citizen having special responsibility for the quality of justice, and a member of a learned profession. A lawyer may be required to act as advisor, advocate, counselor, negotiator, intermediary, and evaluator. In performing these roles, the lawyer must be competent, prompt, and diligent. The lawyer must maintain good communication with the client and keep confidences revealed by client undisclosed except where required by law.

    The importance of good communication cannot be overemphasized. Challenges to a lawyer's competence or diligence may be triggered by the apparent insufficiency of a legal presentation, or an alleged frivolous application or where a lawyer's conduct is seen as dishonest, neglectful, or involving unusual delay.

    Furthermore, Massachusetts immigration lawyers as well as lawyers who practice in other states are also subject to the Immigration and Nationality Act (INA). INA § 240(b)(6) requires the Secretary of Homeland Security to define what constitutes frivolous behavior by an offending attorney. However the tribunal that evaluates the sufficiency of attorney misconduct allegations as presented by the Department of Homeland Security (DHS) and Executive Office for Immigration Review (EOIR) disciplinary counsel is the Board of Immigration Appeals (BIA).

    INA § 274C (a)(5) prohibits any person or entity from knowingly submitting an application with knowledge or in reckless disregard of the fact that the application was falsely made or does not relate to the person on whose behalf it was or is being submitted.

    Furthermore, 8 Code of Federal Regulations (CFR), 8 C.F.R. §§ 292 .3, 1292 .3 provides the authority for Department Homeland Security (DHS) officials and the Board of Immigration Appeals (BIA) to impose sanctions against lawyers who have engaged in criminal, unethical, or unprofessional conduct, or frivolous behavior. In addition, the requirements at 8 C.F.R. § 1001(f) permit the BIA to disbar or otherwise discipline a lawyer based on action taken against that lawyer in the other jurisdictions where he/she is licensed to practice.

    Apart from the formal rules at the state and federal level, an attorney must comply with appropriate modes of conduct expected from responsible professionals, react to a body of law in constant flux and interact with people whose future may hinge on the brilliance of the legal advocacy advanced in their support. The law imposes increasingly heavy penalties for noncompliance with even minor requirements.

    Sometimes, the client's inability to effectively participate in his/her own case is unambiguous. In these instances the client will not speak English and appears totally unfamiliar with the cultural practices of the United States. In other instances, the client demonstrates a lack of understanding for the lawyer’s role in the U.S. legal system or how the system operates. Other times, the client may appear to adequately understand these matters but that understanding may be incomplete or flawed. In some instances, the communication problem may concern the legal fee. The prudent attorney therefore cannot assume that the client understands legal terminology or fee procedures in English, despite having an apparent English fluency. Furthermore, the attorney must exercise caution in allowing family members or friends of clients to translate on their behalf. There is a risk that legal concepts and financial procedures will be lost in the translation and may adversely impact the client's ability to make informed decisions or hamper the attorney's ability to represent the client zealously.

    Since unresolved cross-cultural issues (both the attorney's and the client's) may interfere with the establishment of good attorney- client communications, a diligent attorney will consider the impact of his/her client's unique cultural and historical heritage when pleading the client's case. The attorney will also make effective use of various tools such as translators and various types of therapists in order to ensure that the client is kept fully informed. If there is any doubt that the attorney is effectively communicating with the client, the attorney must eliminate that doubt, or the client must terminate the attorney as his/her representative and pursue a complaint with either state or federal authorities depending on the nature of the attorney's noncompliance or violation of the ethics rules.

    Reprinted with permission.


    About The Author

    Peter A. Allenn

    I am graduate of Hiram College (BA Poli Sci Magna Cum Laude and Phi Beta Kappa) and Boston College Law School (JD). I am the former head of the Boston Bar Association's Committe on Immigration Practice and for a number of years I taught Immigration law at Suffolk University Law School in Boston and together with my late father, Max J. Allen hosted a telephone chat feature in New York on Bri Lal's Bharat Vani radio program and here in Boston on Harish and Bini Dang's radio program, sounds of India. I have also lectured on Immigration law at venues in the United States, Canada, UK and India. After a period of professional discipline and personal tribulation, I regained the right to practice in Massachussetts, New York and the District of Columbia as well as the Board of Immigration Appeals. This experience has made more aware of the emotional and financial turmoil that the attorney- client relationship creates for lawyers and clients alike. It also calls out for tearing down all sorts of walls that keep people apart.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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