Immigration Law Practice: Ethics And Money
We make a living by what we get, but we make a life by what we give.
The world is put back by the death of every one who has to sacrifice the development of his or her peculiar gifts...
The notion of practicing law being a path to an opulent lifestyle is a relatively new idea, a 20th century idea. Before that the law was seen simply as a profession, done for prestige and standing, but not necessarily money. Money was always a necessity, but not the primary object. Edwin W. Diehl wrote, "Your calling differs from business vocation for the reason that service comes first and money or its equivalent comes second." Today that doesn't seem to be the case, sadly.
Recently I was walking down Exchange Boulevard in Rochester NY with a lawyer I've known for many, many years. He said to me, "Anthony, lookit - law is just a really lousy business." That statement struck me. I'd never considered law a business. I don't mean to sound high-minded: I like frequent, well paying clients as much as any attorney. But I never measured the law as a good or bad business, like for example you would compare the car business with the grocery business. Publishing casebooks or treatises was business, and hawking CLE and bar exam courses were businesses, but the practice of law itself I never considered a business.
And lest I be seen as a pious legal martyr, non-profit legal crusading isn't law practice either. Those folks only take winnable cases, and they can sit on their hands all day and still take home a paycheck. Many non-profit attorneys are admirable practitioners, but the vast majority depict themselves as suffering, misunderstood saints. That's not exactly the arduous "slug it out in the trenches" reality of law practice. It's arguably a forum for self-deification.
Law practice, and immigration law particularly, requires the best "stuff" that's in us: extreme discipline, superior people skills, a bulletproof hide, and a missionary's zeal. But it mustn't require an overarching concern with money. In law practice, money concerns are best left in the gas tank. They shouldn't get up front and steer. Law isn't a business.
For just the legal work in a law practice, the time demands are immense. We always must strive for perfection. Otherwise, why are we doing it… to be mediocre? My first boss, David Koelsch, taught me that. I could never fault him for insisting I work long hours because he worked longer hours than anyone: up by five, prep-work, get to work, review, a full day of court, meeting clients, phone calls, assigning work; then he'd go home, and more work - writing articles or meeting clients he couldn't see during the day. I don't think he ever went to bed before 11 pm. Just watching him could wear me out. Once I noticed him putting a pile of printed material in his briefcase - cases, immigration memos and notices, but no client files. I asked him about it. He said,
"Oh, that's stuff I take home to read."
"Really? How often do you do that? Not every night!"
"Yeah, well… pretty much every night."
I looked at him and didn't speak. After a pause he said,
"Well, this is a pretty intense vocation. You have to keep all the batteries charged, eh?"
He was right. Immigration law consists of massive amounts of material to absorb. There is the INA, the Federal Regulations; case law to know, both the BIA and Federal Appellate cases; and then all the extra fun stuff to absorb - agency policy memos and directives, fact sheets, stakeholder meeting minutes, updates to agency manuals, articles. And it's also a good idea to keep up with politics, especially as elections approach, because immigration is a politically sensitive issue. A client can often be helped if you know which way the political winds presently blow (not that our beloved politicians would use any issue for personal gain, of course).
And immigration law is diverse, consisting of many different areas; each one having the potential to be a specialty in itself: legal residence and naturalization, removal relief, family law, refugee law, business and employment law (temporary and permanent), etc.
So if you want to be a good immigration lawyer, you need to study a lot. And reading while you're billing doesn't count. You have to carve out time each day to do your reading so you can be better tomorrow than you were today. Here's a good question for a potential client to ask a lawyer: "How many hours a week do you spend in private study?" (How would you truthfully answer a client if they asked you that?) And if the attorney hesitates and looks surprised, the client shouldn't hire him. Pray that the lawyer in this example isn't ever you. We really have no choice. If we desire to be top-flight immigration lawyers, we have to do a lot of studying.
(Don't even think of saying that you're too busy to do extra reading. No one was busier than Koelsch, and he certainly did it.).
Here's what's alarming: where there is opportunity, unethical and incompetent immigration attorneys can make money. It's disgraceful and repugnant, and it happens all too often. It's easy to see why,
1. There are millions of potential clients out there, and the outdated laws sometimes prohibit lawyers from doing anything for them - legally;
This unethical "hustling" is common.
In New Jersey, I had a few clients who'd been taken in by different scams. One involved "pilot fish" being sent into immigrant communities to look for illegals. They find them and assure them that there's a lawyer who can get them a green card. One of the scams was a 245(i) scam; the other was a marriage fraud ring. Attorneys would promise a green card for about $4,500. I'll never forget asking one client, "What was the bride's name?" He said, "I don't know; I never met her." I replied, "Well, didn't you meet her at the ceremony?", and he said, "I never went to any ceremony." And lawyer/con-men spoil honest law practice for the rest of us: immigrant communities are very "thick." When word spreads about a scamming lawyer, pretty soon the word is out that no lawyers should be trusted. I've gotten enough sidelong glances to know.
But let's hope those are extreme examples. Other regrettable "business practices" involve lawyers who know nothing about immigration law, but who still take on immigration clients simply because they need the fees. I've seen this numerous times: a lawyer that could speak Spanish takes on a client and didn't know the what the term DHS meant; another lawyer at the clerk's office in Newark shouting and cursing because she didn't know how to file a motion (her case was dismissed a week earlier); and another lawyer calling me wanting to know what "derivative children" were. When someone tells me he practices immigration law but doesn't specialize, I get very wary. Sorry, but that's borderline malpractice. It's similar to a podiatrist attempting neurosurgery. Immigration law is just too involved and too complicated to dabble in. That's playing games with people's lives in order to make a buck… sorry, it is.
Don't do this. Strive to serve first; serve as well as possible, and the rest will follow. Reach for expertise as the path to better, well paying clients. Just as it is in every other field, if you make competency the highest priority, the money will follow. Make it a goal to be within the top ten percent of immigration attorneys. Leave the competition to the rest of the 90 percent. If we chase perfection, we may never get it - but we'll have the best possible careers. Clients are very smart, they eventually always find out who the very best attorneys are. Those of us that aren't devoted or ardent enough to become excellent won't get the clients. If you're in the top ten percent, you'll get them. (Imagine Koelsch ever lacking for clients!). But money can't be the objective; the objective is in always becoming a true expert so that the client gets the finest possible service.
What else is there? Why else would we do this?
Here's a typical example of the tension between client service and money. Client X was an Asian national. In the US, she legitimately married Chan Doe, an LPR. Chan neglected to adjust her, and five years passed. Since she had overstayed her visa and hadn't adjusted status, ICE arrested her and put her into detention. I managed to get her out on bond.
Client X and her husband were working people without great financial resources. I was mindful of this while handling Client X's case. I charged reasonable fees, some would say they were minimal. While the outlook for her case looked favorable, Client X always paid me and always heeded the advice I gave her. She was nervous, even frantic at times, but she always listened to me; and in dribs and drabs, I collected some fees.
Suddenly her husband Chan was put into immigration detention on an old drug charge. Just as suddenly everything changed: my calls were not returned, my letters weren't being answered, and - shocker! - I wasn't getting any fees anymore. An investigator of mine found out that Client X, panicked and grasping at any possible straw, was plotting to flee the jurisdiction and go into hiding. And that she was hoarding all the money she had, including my legal fees, to finance her flight into the immigration shadows.
Her case eventually turned out well. Because I had what all immigration attorneys need - some good luck and a lot of help - Chan's charge was vacated, and he got out of detention. He's now adjusting his wife's status. Client X is now returning my calls, responding to my letters and paying me, and I'm very glad she's paying me. But getting paid was never the goal. I'm not being high-and-mighty here, nor am I independently wealthy. Client X's welfare was always my first concern. After all, if she'd fled, she'd never have had a future in the United States. How could the objective be anything else? That's the mission, that's why we're attorneys: always be trustworthy and never falsehearted. There's no other choice.
But what if money had been my primary objective? That's an easy choice in a bad economy, when bills aren't being paid. What if Chan Doe never would've been released, and I knew it? I could've comfortably done this: told Client X that 1) She needed to give me $9,000. immediately, 2) once I had the money I'd get Chan out of detention, and 3) then I'd get her a green card within a few months. I could've done that and she'd have believed me, trusted me. She'd have found the money somehow and paid me. After all, once Chan was in detention, Client X was terrified. If she was desperate enough to flee into uncertainty, she'd almost certainly do anything I asked her because I was her lawyer. And then? - I'd have my $9,000.00, and I could rattle around and make some noise, for show; then in a few months tell her that the government had unexpectedly clamped down and there was suddenly no hope. Client X had a sister in Ottawa, so I could suggest she go to Canada.
So by being devious and putting money first, I would have collected over twice the money I did get. The client would be shattered. My reputation would probably have been left intact. Client X wouldn't have suspected any wrongdoing, and she would never have filed a grievance. She would always long for her life in the United States, and miss her husband terribly, but she'd probably live reasonably well in Canada.
And what about me? I'd have my money and… what else? The thrill of a big fee lasts about a week. After that all I'd have was the knowledge that I'd knowingly swindled a client; that I'd misled her, lied to her really, just to get a sizable fee. Maybe if you make your conscience a conspirator, you can rationalize this type of hoodwinking. For me, an acrid disgust would've hounded me forever. What else do we have to offer as attorneys except our honesty, our trustworthiness, and our competence? It's one thing to knowingly sell a used computer with a motherboard that'll likely sizzle in a few months; it's quite another to extract a fee by playing games with people's hopes, and fears, and their trust. How much money makes it okay to know in your heart that you ultimately aren't worthy of your client's trust?
I'm not a bloody saint. I see no virtue or merit in being broke. My law practice must charge and collect fees, and we must make a profit. But that always has to be secondary. Sometimes I'm not at all happy that it's secondary, especially when I know other lawyers take unethical advantage of clients and get higher fees. But if I'm not always happy, that's too bad; I know I can live with myself. That's worth plenty.
Winning is sometimes a dangerous concept. Many "winners" are below average people because they'll do anything to win. Excellence isn't always winning, because some cases are simply unwinnable: the other lawyer or his facts may just be better. And some cases are almost impossible to lose: a marginal attorney will get a second-degree conviction where a better attorney might get a first-degree conviction. Excellence is being and doing the very, very best possible work. If you do the best possible job and lose, that's excellent work. If you win with a halfhearted effort, that isn't excellence. And excellence most certainly isn't just collecting a sizable fee.
A voracious appetite for money alone is, well… shallow. A lawyer must be devoted, must continually improve, and must be exhaustivly consumed with the client's welfare. However much money you make, you're a failure if you apply minimal effort, or are content with being tolerably average, or see the client only as a pathway to a fee. Here's what Edwin W. Diehl said: "The law is a high and noble profession that demands such diversity of talent and such tiresome energy in fitting the mind and body for so great a part in life's business that it is not surprising that there are many failures."
Anthony Guidice practices Immigration Law in Rochester, New York.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.