Providing legal services related to immigration following
President Obama’s executive action: An ethics checklist
By Andrew Tuft
On Nov. 20, 2014, President Obama announced significant changes
to the immigration system via executive action. Taken as a whole, these changes
are referred to as the Immigration Accountability Executive Actions, and they
present major changes to national immigration policy. The executive actions are
summarized online by the U.S. Immigration and Citizenship Services at: http://www.uscis.gov/immigrationaction. The purpose of this article is to provide a checklist of some of the key
professional conduct standards related to the provision of immigration services
in California.
In 2013, the State of California enacted AB 1159 which was
codified in Business and Professions Code sections 6240 – 6243 and in
amendments at sections 22442, 22442.3 and 22443.1. This law was created in
response to reports from law enforcement that the federal debate over immigration
reform was prompting scams aimed at undocumented immigrants.
Attorneys providing legal services on immigration issues
should be aware of the following significant AB 1159 restrictions and
requirements:
- Prohibits
attorneys and immigration consultants from demanding or accepting payment for
any “immigration reform act services” before enactment, by Congress, of an
“immigration reform act” that authorizes undocumented immigrants to attain
lawful status under federal law.
- Requires
attorneys to inform clients receiving immigration reform act services where
they can report complaints about the attorney. A notice
for attorneys to use has been posted on the State Bar’s website and has
been translated into multiple languages.
- Requires
immigration consultants (defined at Bus. & Prof. Code § 22441) to file a $100,000
bond with the Secretary of State prior to engaging in the business or acting in
the capacity of an immigration consultant.
- Prohibits
the use by non-lawyers of the word “notario,” which has been misconstrued as
someone who is qualified to give legal advice.
- Provides
that a person who violates the ban on the use of the term “notario” is subject
to a civil penalty of up to $1,000 for each violation.
- Provides
that a person who violates the ban on the use of the term “notario” constitutes
a violation of Bus. & Prof. Code § 6126(a), which states what is the
unauthorized practice of law, and a misdemeanor, for a person to hold him or
herself out as entitled to practice law.
Following President Obama’s executive action, individuals
may be seeking legal advice with respect to their immigrant status. Unfortunately,
con artists may also emerge to prey on vulnerable consumers as well as
unsuspecting lawyers by using lawyers to lend credibility to fraudulent
promises of immigration services. Below you will find a listing of several
ethics rules that may apply in the event an immigration consultant or another
non-lawyer requests assistance from a lawyer and/or refers potential immigration
clients to the lawyer:
- A
lawyer may not pay a referral or marketing fee to an immigration consultant or
any other person (Rule
of Professional Conduct 1-320(B); Bus.
and Prof. Code §§ 6151, 6152 & 6155).
- A
lawyer may not directly or indirectly split any attorney’s fees that the lawyer
earns from an immigration client with an immigration consultant or any other
non-lawyer. (Rule
of Professional Conduct 1-320(A)). The prohibition on fee-splitting applies
even in certain limited circumstances where Bus.
and Prof. Code § 22441(a)(5) permits an immigration consultant to refer a
prospective client to an attorney for legal representation in an immigration
matter.
- A
lawyer may not aid an immigration consultant or anyone else in the unauthorized
practice of law. A lawyer may not form a partnership or joint venture with an
immigration consultant or other non-lawyer if any of the activities of the
business would involve providing legal services. A lawyer may not, under the
guise of serving as an in-house counsel for an immigration consultancy
business, perform legal services for an immigrant seeking legal status. (Rule
of Professional Conduct 1-300(A) & 1-310).
- A
lawyer should not work with non-lawyers holding themselves out as “notarios.”
Because in some cultures the use of the word “notario” is used to refer to a
professional authorized to give legal advice, a lawyer affiliated with a
non-lawyer who uses the word “notario” would be subject to aiding in the
unauthorized practice of law. (Rule
of Professional Conduct 1-300(A); Bus.
& Prof. Code § 6126 and 22442.3(d)).
(See also, In the Matter of Valinoti (Rev. Dept. 2002) 4 Cal. State Bar
Ct. Rptr. 498, 520 A non-lawyer who acts as an immigration consultant in
California in violation of the federal regulations also violates California’s
prohibition on the unauthorized practice of law.).
- A
lawyer may not contact in person or by telephone an immigrant seeking legal
advice referred to the lawyer by someone else unless the lawyer has a family or
prior professional relationship with the individual who is seeking legal
status. A lawyer may not direct another to do so on the lawyer’s behalf. A
lawyer, however, may write to an individual who is prospective client. (Rule
of Professional Conduct 1-400(C), (B), (D), and Standard [5]).
- Attorneys,
immigration consultants, notaries public and organizations accredited by the
U.S. Board of Immigration Appeals are prohibited from participating in
practices that amount to “price gouging” when a client or prospective client
solicits services associated with filing an application for deferred action for
childhood arrivals. Violating the statute is a cause for discipline against an
attorney. (Bus.
and Prof. Code § 22449(b)(1) & (c)(1)).
“Price
gouging” is defined as “any practice that has the effect of pressuring the
client or prospective client to purchase services immediately because
purchasing them at a later time will result in the client or prospective client
paying a higher price for the same service.” (Bus.
and Prof. Code § 22449(b)(2)).
- A
lawyer may not intentionally or recklessly fail to perform legal services with
competence. (Rule
of Professional Conduct 3-110(A)).
- A
lawyer should be wary of accepting fees for little or no work. (Rule
of Professional Conduct 4-200(A)).
- Advertisements
by or on behalf of an attorney providing immigration or naturalization services
(including telephone directory listings of more than three lines) must contain
a statement that the attorney is an active State Bar member licensed to
practice law in California. (Bus.
& Prof. Code § 6157.5(a)).
- Advertisements
seeking employment for a law firm or law corporation employing more than one
attorney (including telephone directory listings of more than three lines) must
contain a statement that all immigration and naturalization services will be
provided by an active State Bar member. (Bus.
& Prof. Code § 6157.5(a). NOTE: this provision does not apply to
State Bar members employed by public agencies or nonprofit entities registered
with the Secretary of State).
- A
person who is not an active member of the State Bar of California, but is an
attorney licensed in another state or territory of the U.S. and is admitted to
practice before the Board of Immigration Appeals or the U. S. Citizenship and
Immigration Services, shall include in any advertisement for immigration
services a clear and conspicuous statement that he or she is not an attorney
licensed to practice law in California but is an attorney licensed in another
state or territory of the U.S. and is authorized by federal law to represent
persons before the Board of Immigration Appeals or the U. S. Citizenship and
Immigrations Services. (Bus.
& Prof. Code § 22442.2(c)(3)). If an advertisement subject to the above statute is in a language other than English, the statement required by the above statute shall be in the same language as the advertisement. (Bus. & Prof. Code § 22442.2.(c)(4)).
Andrew Tuft is a staff attorney in the State Bar of
California’s Office of Professional Competence. Attorneys who have ethics
questions may call the bar’s Ethics Hotline at 800-238-4427 (in California) or
415-538-2150 (outside California).