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Crossing The Conrad Border: Customary Federal Practice Or Ethical Quicksand For Business Immigration Practitioners?by David Nachman, Esq.The Immigration and Nationality Technical Corrections Act of 1994, provides for a special program to waive the two-year foreign residency requirement for foreign physicians who acquired J visa status or entered as J visa holders before June 1, 2002. The program was named after Senator Kent Conrad (D-N.D.), who sponsored legislation that broadened the federal scope of the program by allowing state administrative agencies to sponsor physicians for the waiver. The Conrad program allows an "interested" State Department of Public Health, or its equivalent, to recommend up to 30 visa waivers per year if the applicant:
In order to begin to answer this question, one must carefully scrutinize the Rules of Professional Conduct in each relevant state jurisdiction. Unfortunately, many of these state rules tend to provide amorphous answers such as "a lawyer shall not practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction." RPC 5.5. Such general statements hardly provide meaningful guidance. However, consulting State Disciplinary Opinions can also provide additional guidance. In New Jersey, the Committee On The Unauthorized Practice Of Law has held:Does this mean that New Jersey would not yield to a Conrad waiver filed by a foreign attorney? It appears that business immigration practitioners can either "roll the dice" with foreign Conrad waivers, or consider taking some kind of preventative measures. Such pre-emptive measures may include asking for permission from the relevant jurisdiction to appear pro hac vice, or partnering with local counsel who can submit the State materials. While such measures may seem rather conservative, they pale in comparison to the possible consequences of ethical laziness. Recently, the State Bar Association urged the New Jersey Supreme Court to take a hard line on cross-border lawyering. However, the justices seemed skeptical and appeared willing to be at least open to the ideas of multi-jurisdictional practice, admission on motion and an end to the bona fide office requirement. Without further guidance, attorneys appear to be left to their own best judgment in handling this kind of ethical matter. Of course, the issue of unauthorized practice is not just a problem for immigration attorneys. For example, the case of Birbrower, Montalbano, Condon & Frank v. The Superior Court of Santa Clara County, 17 Cal.4th 119 (1998), sheds great light on this issue in the area of private arbitration proceedings. In Birbrower, the Supreme Court of California found that a New York law firm violated the unauthorized practice of law statute by practicing law in California when it was representing a California client in a contract dispute and made preliminary arbitration agreements and attempted to negotiate a settlement. The Birbrower attorneys conducted this work in California and did not partner with local counsel. In ruling against the Birbrower firm, the court pointed out that the practice of law includes legal advice, legal instrument and contract preparation, whether or not these services are rendered in the course of a litigation. The court held that private arbitration and other alternative dispute resolution practices are important aspects of the judicial system and declined the invitation to create an arbitration exception that the Legislature did not enact. The foregoing clearly illustrates the ethical issues that attorneys confront on a daily basis. Many times ethical issues can mirror some legal questions in that there does not appear to be any "black and white" solution. This article does not pretend to have any simple resolution to this continuing dilemma. Rather, as Supreme Court Justice Louis Brandeis wrote in 1933, "sunlight is the best disinfectant." Thus, the legal community would be wise to heed Justice Brandeis' words by demanding a greater focus on current ethical issues in the preparation of and submission of documents for Conrad waivers in states where those attorneys are not licensed to practice law.
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