Those Private Sector Immigration Lawyers: Part II

By David North on January 12, 2012

In an earlier blog I reported that a survey of immigration judges sitting in New York said that almost half of the private sector immigration lawyers they saw were not doing their job adequately.

In fact, the 31 IJs surveyed (of the 33 on that bench) said that 33 percent of the lawyers they worked with were inadequate at their jobs, and 14 percent were grossly inadequate, for a total of 47 percent. That's pretty damning.

What to do? Well, there would seem to be two basic approaches that could often be used simultaneously: discipline and mandatory continuing education.

My comments on these matters are either made more cogent, or not, depending on how you view my status as a non-lawyer. I have, on the other hand, spent many a long day watching immigration courts in action at various places along the East Coast, and have often seen a borderline lawyer handle an immigration case.

Discipline. While the Executive Office of Immigration Review (EOIR), the entity that runs the immigration courts and the Board of Immigration Appeals (BIA), often announces disciplinary actions against immigration lawyers, such as in this November 1 press release, these are derivative actions, reflecting prior suspensions and disbarments imposed by state court systems and bar associations. There does not seem to be an immigration-specific disciplinary system.

Bearing that in mind, my friend Jason Dzubow, a distinguished asylum attorney in Washington, has written two articles for Immigration Daily (here and here) suggesting disciplinary approaches that might be useful vis-a-vis incompetent and negligent immigration lawyers.

He suggests, for instance, that immigration judges should not just complain to surveys about bad lawyers, they should report them to legal disciplinary organizations; good point.

He also suggests that letting people with an overseas law degree and an American LLM take the bar (the practice in California and New York) may not be a very good idea, without further restrictions. He feels that bar associations are not doing enough to discipline bad apples at the bar, and informing immigrant communities of their legal rights.

He also suggests, though he does not think enactment is likely any time soon: "A final – and more sweeping – idea is to create a separate immigration bar association and require membership in order to practice before all immigration agencies" and then give that organization disciplinary responsibilities. All good ideas.

He also argued that it is very difficult to impose discipline on inadequate attorneys under current arrangements.

Continuing Education. Some of the worst immigration lawyers should be forced out of the business, no question about it, but others can be helped to perform their performances, and here are three ways to do that.

Teachable Moments. I have been in the courtroom on many occasions when the judge sees an inept performance and an opportunity to teach the attorney how it should be handled. In too many cases, a passive judge will simply seek to find justice despite the attorney's failings and do nothing to help that lawyer in the future.

In other cases I have seen an angry judge almost snarl at an inept attorney and tell the lawyer that he is on the wrong track. Often a judge can do this without the illegal alien in the dock knowing what is going on over his head. Though painful, the lawyer learns something.

In another case, before a different and more kindly judge, I remember that judge's treatment of a young attorney, apparently from Africa, who had made some serious errors in her presentation, seeking an inappropriate form of relief when another one was potentially available, or filing the wrong forms, or both.

"Is there someone a little more experienced in your firm that can look these matters over with you?" the judge asked.

It turned out that she was a) new to the law, and b) in solo practice.

The judge then suggested some other ways that the young woman could improve her advocacy.

There should be more of that.

Learning by Listening. I remember talking to one immigration attorney as the court was momentarily out of session.

"I spend half my days waiting for a few minutes before a judge," he complained to me; I had seen a lot of that in the IJ courtrooms.

Often a lawyer will work with his laptop in the courtroom waiting for his brief moment in the sun; or he will chat outside the courtroom with either his clients, or with other lawyers.

My sense is that these odd minutes (and hours) could be better used by the lawyers, certainly in their first few years of practice: they could simply sit and watch what happens in the cases being presented. In this way the new lawyer can learn about the nuances of the substance of the law, the procedures employed in particular courts, and something about how specific judges handle different situations. It is a real opportunity to use downtime constructively.

Mandatory Continuing Education. Disbarment is a severe penalty, much like imprisonment, and the legal system is loathe to impose very much of it, except in really serious situations, but I can visualize a milder kind of sanction that might improve borderline attorneys.
Further, disbarment, and its little sister, suspension, are systems outside the powers of the IJs.

My notion – and this might only be possible with a change in the law – is that there ought to be lesser sanctions that dealt with the immigration courts only, and could be imposed by a single IJ, without recourse to a complex appeals process.

A prerequisite for this "counselor improvement system" would be the continuing presence of either evening or weekend courses in the practice of immigration law, funded by fees paid by the lawyers who attend. There would be a series of brief educational events, lectures, seminars, and the like on specific aspects of immigration law.

An attorney who showed lack of preparation could be given an ultimatum by an IJ: Take this course (or these courses) on a specific immigration law subject or subjects in the next two months, and pass the tests given, or you will not be allowed to practice in this immigration court, until you have done so. The sanctions would only relate to the IJ courts and to nothing else.

I think that such a system would help lift the quality of the practice in these courts.