Making Ethics Really Matter

by Michael Maggio

AILA's leaders, at every level of the organization, are doing more than ever to focus on the importance of ethics in the practice of immigration law. AILA's leadership, as well as this author, however, can and must do more if ethics is to really matter to AILA's membership.

We must accept the fact that we are in the midst of an immigration ethics crisis. The worst consequences of this crisis are ruined lives for many foreign nationals and their American employers and families. Witnesses to this crisis agree that immigration clients are hurt most by so-called immigration "consultants," or notarios, who practice immigration law illegally. Waging war against the unlawful practices of notarios is essential, and AILA has successfully fought notarios in Texas and is in the midst of a pitch battle against notarios right now in New York. Clients also are hurt by immigration lawyers who do not know enough immigration law, and/or who do not care enough about their clients. But heightening ethical standards among immigration lawyers is more complicated but surely no less important than AILA's fight against notarios, and doing so enhances AILA's credibility in its fight against notarios.

AILA has sought to heighten ethical awareness and standards by providing to every AILA member a copy of its new, excellent publication, Ethics in a Brave New World. This book underscores the importance of ethics and is a highly informative and useful resource. AILA's leadership also has called for an ethics officer in every AILA chapter, and this and other efforts are important to the ethically guided practice of immigration law. Yet these efforts, however laudatory, do not address the root causes of most serious ethical problems among immigration lawyers: too many immigration lawyers do not know the complexities of immigration law sufficiently, and too many do not care enough about their clients and their cases.

Complexity of Practice

To understand and address the fact that immigration lawyers too often become entangled in ethical predicaments—ultimately hurting those they are committed to help—requires AILA's leaders to focus on how hard it is to practice immigration law effectively and to look beyond their own practices, which for the most part involve business immigration law where the "conflict of interest" is the most common ethical dilemma. Unlike most of AILA's leadership, the majority of AILA's membership has been practicing immigration law for less than five years, many as solo practitioners. Their practices focus on family-based and labor certification cases, along with deportation defense, admissibility problems, and political asylum. New immigration lawyers and solo practitioners generally have many more individual foreign national clients than institutional clients. Their clients often have little money or education and have the greatest needs, making them the most vulnerable to attorney neglect and abuse.

At the same time, the areas of immigration law where these AILA members concentrate their practice are far more complex than most aspects of business immigration law. Sure, drafting a labor certification application is "an art," but let's be honest, it is nowhere near as complicated as, for example, understanding the immigration implications of criminal convictions. Similarly, understanding what it takes to get waivers of inadmissibility, or the differences between the cancellation and §212(h) stop-clock rules, and understanding how to craft a winning asylum application are far more challenging than, for example, preparing volume -based H and L applications. Little wonder so many outstanding business immigration lawyers decline to handle such cases. Likewise, it is not surprising that AILA lawyers who primarily practice non–business immigration law too often make life -altering mistakes, and eventually they face bar complaints and Lozada motions to reopen for ineffective assistance.

Additional differences between most of AILA's leadership and the rank and file are relevant here. Newer lawyers, for the most part, are still paying their law school loans. They, and many solo practitioners, face financial pressures that are in the past for most of AILA's leadership. These pressures cause some lawyers to take on more work than they should, and to sometimes accept totally hopeless cases. And although there is no question that the stakes are high for all immigration clients, they are higher for foreign nationals who face persecution or a lifetime of poverty for themselves and their family. These high stakes increase substantially when the children of foreign nationals do not know the land of their birth, or when American children could lose the land of their birth because their parent's immigration lawyer did not know enough, or care enough.

AILA's leadership constantly must ask the membership and itself, what do AILA members need to know to be better lawyers? Answering this question is key to making ethics really matter. In doing so, it helps to recall that more than 50 years ago, when immigration law was far less complicated, federal courts described the Immigration & Nationality Act as similar to "a labyrinth in ancient Crete," and "only second in complexity to the U.S. tax code." Indeed, a principal reason notarios have no business practicing immigration law is that it is our country's single most complicated practice area of law. Acknowledging the incredible complexity of immigration law clarifies what we must do to heighten the ethical standards of immigration lawyers and stop the growth of notarios, too.

Say "Yes" to Mandates

State bar associations have the responsibility for policing and disciplining ethical recalcitrance. Certainly, AILA, as a national association, has a limited capacity to police its membership. But AILA can better communicate that it does not tolerate ethical neglect and incompetence. Some AILA leaders have claimed that AILA may face liability if the Association, as an institution, disciplines those members who shame us. Perhaps, but has AILA sought a legal opinion and guidance for outside counsel on this important issue? If not, AILA should.

AILA certainly can require CLE time as a condition for membership. AILA's leadership should consider imposing such a membership requirement to help compel members to know and care more. AILA also should offer regular classes and consider requiring newer members to attend CLE sessions on matters as basic as the need for implementing intake questionnaires and proper file maintenance, calendaring due dates, enhancing client communication, accepting and declining cases, providing clients with copies, as well as the need for and the content of good representation agreements. A better understanding of these subjects, just like a better understanding of substantive immigration law, will lead to higher ethical standards. This will result in greater client satisfaction and greater revenues for AILA's members. When ethics really matters, immigration lawyers have more and happier clients, and they make more money. AILA's leadership must teach its membership how and why that is true.

The majority of AILA's membership will not believe that ethics truly does matter until they understand the nexus between their wallets and their hearts and minds. Stated differently, AILA must show its membership how and why knowing enough immigration law and caring passionately about clients can axiomatically lead to a more successful and lucrative practice.

Most immigration lawyers practice immigration law because they like working with and helping people. What is more, unlike most areas of law, immigration attorneys make a real difference in people's lives, and sometimes in the larger world, too. Most immigration lawyers do care, but some lose their way. AILA must help those who care about their clients, but want and need help. AILA also must find ways to purge its membership of those who simply do not care and have no interest in learning how to be better lawyers.

An Ethics Crisis

Some readers are thinking that this problem "is not that great," and that it is even hyperbolic to talk about an "ethics crisis" in immigration law. They are wrong. Every week, dozens of immigration lawyers are consulted by countless foreign nationals who face deportation and the destruction of their families because of a notario's worthless work, or because of another immigration lawyer's ignorance, neglect, or both. The poor, of course, suffer disproportionately, but the victims include the financially comfortable, too. Like illegal entries, the real numbers are many times higher than those who get "caught" by successor counsel. It is also common to see foreign nationals who have paid a notario or an immigration lawyer to pursue an unattainable immigration benefit. That situation accurately is described as theft.

Still not convinced that this ethics crisis is real and large ? More immigration lawyers have been indicted for immigration fraud than ever before, and more indictments are in the works Some of the accused surely are guilty, while others are the victims of over zealous prosecutors searching for headlines. Significantly, this ethics crisis not only damages our collective reputation, but also our ability to assist colleagues wrongly accused of immigration fraud . As importantly, , we have a moral responsibility to stop notarios and attorneys from abusing, even unintentionally, the people who put food on our own tables.

There is no doubt that AILA's leadership fully understands its responsibility to help our colleagues help themselves and their clients, and that the presumption of innocence obviously extends to lawyers charged with immigration fraud. At the same time, AILA's ability to combat notarios is strengthened when it is clear that AILA is not against notarios because they "take clients away from lawyers," but because AILA genuinely is concerned about the damage notarios cause. This rings most true when AILA holds its own members to the highest ethical standards and lets it be known that it is equally concerned about inadequate representation by immigration lawyers. A greater emphasis on ethics by AILA may also diminish politically motivated prosecutions of immigration lawyers, a serious concern always, but now more than ever , while simultaneously enhancing AILA's ability to assist those wrongly accused .

Like with so many other problems, the need to do something is obvious, but what should be done is not. The following proposals are offered to stimulate discussion, additional ideas, and action. They reflect ideas that have been exchanged recently on a very active and informative criminal immigration listserve:

• The AILA Executive Committee and Board of Governors should commit to raising ethics to the same level of importance within AILA as advocacy. Achieving that goal should be a constant topic of discussion at every level of AILA's leadership until it is achieved.
• AILA should hire outside counsel to investigate and advise AILA on the extent to which it can discipline members who engage in serious ethical violations. Leaving discipline to state bars, which often are reluctant to discipline, is passing the buck.
• AILA's Education Department, and all AILA chapters, must expand their educational programs to include the mechanics of how to practice immigration law better. Law office management, and the substantive aspects of immigration law and procedures of greater concern to newer and solo practitioners, should be emphasized more.
• CLE classes on how to better practice immigration law, substantive immigration law, and ethics should be mandatory to maintain AILA membership, especially for newer members.
• AILA should enlist the support of EOIR and DHS to make ethics matter more. This should include putting ethics on the agenda for all EOIR/DHS liaison meetings, and advocating for a more liberal attitude from EOIR and DHS toward motions to reopen based on ineffective assistance of counsel.
• AILA must continue to focus on ethical transgressions by lawyers and by notarios.
• Every AILA chapter must have an ethics officer, and the duties of these ethics officers must be formulated and defined at the national level, both by a certain, agreed-upon date.
• As part of its commitment to making ethics matter more, AILA must constantly remind its members that knowing immigration law, caring about our clients, and not lying to clients or the government are at the heart of immigration ethics, and that good ethics results in monetary as well as psychological income.

About The Author

Michael Maggio is a shareholder with the Washington, D.C., firm of Maggio & Kattar, PC. He serves on AILA's Ethics Committee.

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