Monday, November 27, 2017
Friend-of-the-BLPB Ben Edwards penned a nifty op ed that was published yesterday (Sunday, November 26) in The Wall Street Journal. (Sorry. It's behind a firewall, available only to subscribers.) It covers a subject near and dear to my heart and does so in a novel way. Specifically, in the WSJ piece (entitled "Immigrants Need Better Protection—From Their Lawyers") Ben deftly describes the extremely low quality representation that immigrants receive in the United States, notes the market's inability to self-correct to remedy the situation, shares his view that "the best solution--a right to immigration counsel similar to the right to a criminal defense lawyer--" is unlikely to attract and sustain the necessary legislative support, and proposes a novel second-best solution to the problem.
In a forthcoming article in the Washington and Lee Law Review, I argue that requiring disclosure of immigration lawyers’ track records could improve the market for representation. It almost certainly would drive some of the worst out of business. Who wouldn’t shop around after discovering a lawyer ranked in the bottom 10% by client outcomes? Although no lawyer should be expected to win them all, immigrants should get nervous if their lawyer always loses.
Ben uses the concept of a prospectus as his template reference point for the disclosure concept he describes in the article--unsurprising, perhaps, given his professional practice experience as a business litigator and the fact that his academic endeavors leverage that practice experience. The title of the article is: The Professional Prospectus: A Call for Effective Professional Disclosure.
I became aware of the many problems that immigrants have in securing adequate legal representation back in 1990. Susan Akram (now Director of the International Human Rights Clinic at the Boston University School of Law, but then the Executive Director of the Political Asylum/Immigration Representation (PAIR) Project in Boston) came to the Skadden, Arps office in Boston, where I then was an Associate, and informed us about the particular difficulties in securing representation for asylees, whose chances of success in proving and prevailing in their asylum applications was almost nil without representation and relatively high with pro bono representation. I left the room knowing I needed to help.
The situation then described continues to exist today. Ben notes in the WSJ op ed that
the best immigration lawyers may struggle to make a living because their corner-cutting competitors depress the price of services. That’s part of why many talented practitioners choose to abandon immigration law. This has led to a shortage of representation. One 2015 study found that only 37% of people in removal proceedings have lawyers.
He also relates that "[p]ro bono lawyers—who handle less than 10% of cases—win about 90% of the asylum claims they file."
Over the years, working with the PAIR Project, I was proud to represent or assist in representing refugees from Somalia, Zaire (now the Democratic Republic of the Congo), Haiti, Burma (now Myanmar), and Ethiopia. My Somali client married a U.S. citizen, became a permanent legal resident, and later became a U.S. citizen. The daughter of the Zairean couple I worked with--who was separated from her parents in the journey to the U.S. but eventually reunited with them here with my assistance (and Senator Ted Kennedy's help) is a nurse. There are other stories, of course, as well. Although I have lost track of many of the clients and their families over time, the pride in helping them has not diminished.
Ben's professional prospectus idea has merit in the immigration lawyering context. In my view, it is unlikely, alone, to completely solve the problem, and it may have trouble getting traction in the communities that would be responsible for its promotion and implementation. But it is a step in the right direction in ensuring that immigrants get meaningful representation in navigating our complex legal waters, which currently are populated by too many sharks.