I just argued a case before the Second Circuit Court of Appeals that partially involved the issue of when it is necessary to file a bar complaint in conjunction with a motion to reopen due in part to the ineffective assistance of previous counsel.

In immigration law an individual is protected by the right to counsel.  Part in parcel to that right is that if you hire a lawyer, that lawyer is supposed to be competent to handle your case.  If a lawyer commits fatal non strategic errors which result in an individual being ordered removed by an Immigration Judge the legal mechanism to correct the lawyer’s error is a motion to reopen based on ineffective assistance of counsel.

If an aggrieved individual claims that his or her former lawyer made a fatal error the law requires the individual to first file a bar complaint against their former lawyer, and provide the lawyer with notice of the grievance to afford the lawyer an opportunity to respond to the complaint.  Once this preliminary step is completed the motion may then be filed with either the Immigration Court that ordered removal, or alternatively with the Board of Immigration Appeals if the case proceeded that far.

So far on paper that sounds like a logical and rational requirement.  But what about in the instance where an individual has been prejudiced by a lawyer who is no longer practicing law because he or she has been disbarred as a result of malfeasance.

In this example I argued that it is wholly unnecessary, illogical, and futile to require an alien to file a bar complaint against an individual who has been disbarred and is no longer practicing law, and such requirement is an unnecessary burden to the complaining party and to the State.

Attorney Grievance Committees are civil bodies that police the activities of lawyers under their jurisdiction.  The ultimate penalty that an Attorney Grievance Committee may impose on a practicing lawyer is disbarment, and as a result there is no penalty that may be imposed on an individual who is no longer a member of the bar.  As such filing a bar complaint against a disbarred attorney is futile.  Moreover, should an individual be practicing law without a license it would be a criminal matter under which a civil body has no authority to redress.  Although I have yet to get a decision on my argument, the Second Circuit verbally seemed to agree.

The bar complaint requirement contributes to the filing of baseless and frivolous state bar complaints against good lawyers, and should be removed as a prerequisite to filing motions to reopen.  If anything the Immigration Court or Board of Immigration Appeals should be making the determination as to whether an individual has been harmed by prior counsel’s actions or inaction, not an Attorney Grievance Committee who has little to no immigration law experience and is in no way capable of determining if an individual has been aggrieved under the standards set forth by Congress relating to U.S. immigration laws.