Share this on Twitter Share this on Facebook Share this on Linked In Share this by Email

Providing legal services related to immigration following President Obama’s executive action: An ethics checklist

By Andrew Tuft

Andrew TuftOn 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: 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).