Monday, November 27, 2017

Immigrants Need Legal Representation, But . . . .

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.

http://lawprofessors.typepad.com/business_law/2017/11/immigrants-need-legal-representation-but-.html

Human Rights, Joan Heminway, Lawyering | Permalink

Comments

"Nifty" is not the word I would use to describe an op-ed that grudgingly concedes only that "not all immigration lawyers are atrocious" and then strongly implies that the exceptions are pro bono attorneys and law school clinics. While I welcome any useful ideas for how to help immigrants find good representation, disparaging immigration attorneys as a whole is hardly likely to help and plays directly into AG Sessions' characterization of us as "dirty immigration lawyers" inventing a fake refugee crisis on our southern border.

Posted by: Maureen Abell | Nov 28, 2017 1:41:34 PM

Thanks for your comment, Maureen. I did not read the content or the tone of Ben's op ed as a disparagement of immigration lawyers (with all of the implications that may entail). But I now see how it could come off that way. I apologize if you took offense. I hope that if you travel over from Charlotte toward Knoxville sometime we can talk more about this in person. The heart of my post was to call out the need for more and more uniformly competent representation for immigrants and promote a look at Ben’s article in that vein.

Not to dig myself further into any hole that you may see me to have dug for myself here . . . , I should note that I have worked over the years with many excellent immigration attorneys here in Tennessee and in Massachusetts. In a number of circumstances, however, we found ourselves cleaning up after folks who were preying on immigrants--over-charging them for unnecessary or incomplete services and sometimes even disappearing before processes were concluded. I also have encountered "notarios" who misrepresented themselves as lawyers to clients and promised the clients things they could not deliver (or assisted in filing faulty or fraudulent documents on behalf of clients). The American Bar Association saw fit to notify the public about this issue, as you probably well know: https://www.americanbar.org/groups/public_services/immigration/projects_initiatives/fightnotariofraud/about_notario_fraud.html.

Ben’s focus at the outset in the op ed (which is a constrained format for writing, to be sure)—as I read it—was on those who abuse the privilege of their licenses, and the facts he references indicate that there are many in this category. But perhaps he could have specifically called out, along with pro bono lawyers and law school clinical programs, the legal services attorneys like you who are on the front lines every day, fighting the battles expertly and diligently. Folks like you are the people I relied on to teach me how to work with and for immigrants over 25 years ago. Folks like you stood by my side to ensure that I was as qualified as possible to handle these important legal matters. Of course, there also are many private practitioners who are excellent immigration lawyers. I could have mentioned all that in my post. [sigh] But I will have to settle for second-best and mention it here, instead.

Again, thanks for knocking me upside in the head with your comment and offering me the opportunity to make amends and clarify here. I hope that you will continue to read our posts and comment as you see fit. We welcome your thoughts.

Posted by: joanheminway | Nov 28, 2017 2:16:40 PM

Joan - Absolutely. I've read the longer article this was promoting and it's much more measured and nuanced. I understand that the Op-Ed was written at least partly to generate interest in a very real problem for which he is proposing a (partial) solution, but it is to a certain extent an advertisement for the article and is therefore the "sexed-up" and controversial version of reality. My concern is that people will read the Op-Ed but not the article and take away only the more sensational statistics without the context the full article provides. (full disclosure: I know Ben Edwards and I've said as much to him directly. He's a good guy who sincerely cares about this issue and would be horrified to in any way contribute to driving people away from competent legal services.)

Posted by: Maureen Abell | Nov 28, 2017 2:42:47 PM

Thanks, again, Maureen, for your comments. I appreciate your concern and am glad you shared it with Ben directly. You are right that he is a good guy who cares about this issue in a deep way.

I am sure that I read his op ed with all that in mind--which may have made me see things in a different way, more from his perspective. In addition, I heard him present on this topic a few times as he was drafting the Professional Prospectus article. That also may have influenced my "take" on his piece in the WSJ.

Many thanks. I do appreciate your thoughts.

Posted by: joanheminway | Nov 28, 2017 3:32:47 PM

I am writing to ask you to reconsider the last point you have made. You conclude by stating that there are "too many sharks" among the immigration bar. First, you have conflated notarios and other unlicensed immigration advisors who we lawyers fully agree do a great deal of harm to immigrants. You would do well to look into the vigorous efforts of the immigration bar to protect the public from them - such as here: http://www.aila.org/practice/consumer-protection
Second, You may not know that while all lawyers are subject to the disciplinary authority of the states which license them, immigration lawyers are also under the watchful eye of a second disciplinary authority: The Disciplinary Counsel of the Executive Office for Immigration Review.
https://www.justice.gov/eoir/attorney-discipline-program

But here's the main point I'd like you to consider: If immigration lawyers were primarily motivated by greed, is it likely that they would select refugees as their deep pockets?

Posted by: BRENT POIRIER | Dec 1, 2017 3:17:11 PM

Brent, thanks so much for your comments on this post. I honestly never meant for it to strike the chord it obviously struck with a number of immigration practitioners—folks like those with whom I have worked over the years and whom I respect for their very needed work. Please accept my apology for any offense you have taken.

My reference to “sharks” in the last paragraph of the post was a nod to a lot more than the lawyers and notarios who prey on immigrants. Our immigration system is unduly complex and relatively immigrant-unfriendly right now in so many ways—federal officials turning green card holders away at our borders, deportation threats and orders associated with alleged or actual criminal activity, bias and prejudice in the immigration judiciary . . . . The dangers in the immigration waters are many. My close to the post is meant to be a battle cry to getting immigrants quality representation in the current environment.

I am not sure where your point on greed comes from in my post. But I will say that my experience with the charlatans in the immigration bar and with notarios (who assert they are lawyers—expressly or by implication), however, is that some are looking to make a quick buck. They may charge a below-market rate but do a reasonably high volume of business before moving on to a new location.

Finally, I will note that I routinely pass on (in and outside class) facts about incompetent and malfeasant business lawyers (the main focus of my practice, teaching and writing, as well as this blog). In class, for example, I have been known to point to data from reports like the one found at http://www.law.uh.edu/faculty/adjunct/dstevenson/007a%20Legal%20Malpractice%20Claims%20Survey%202015%20Final.pdf, which indicate that there is a relatively high incidence of professional liability claims against securities lawyers. I also teach and lead a class discussion in my Business Associations course on a case in which a practitioner takes on a securities regulation matter that he screws up pretty badly because of incompetence. And the conduct of securities lawyers, like that of immigration lawyers, is governed by more than state professional responsibility rules. The Sarbanes-Oxley Act of 2002 includes federal lawyer regulation provisions with which securities regulation lawyers must comply. Many parallels . . . .

I hope this comment responds adequately to your concerns. Please understand that the ultimate goal of my post is the promotion of quality immigration representation. Thanks for enabling me to make that point again here.

Posted by: joanheminway | Dec 1, 2017 9:01:27 PM

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