To me, taking money for nothing is not lawyering

Saturday, April 10th, 2010
By: Jonathan MontagJ.D.


One of the worst things about my job is talking to people who have been ripped off by other lawyers. It is bad because it is demoralizing that there are so many miscreants among my peers. Ripping off the rich is one thing, but ripping off poor foreigners is quite another. I remember in law school, my professor for professional responsibility once posed the question of why there are so many lawyer jokes – essentially asking why it seems so many people hate lawyers. His conclusion was that in civil disputes involving litigation there are two sides and one side wins and one side loses. The losers make up 50 percent of those involved and they are bitter and blame their lawyer. Statistically, according to his reasoning, half the people involved in the judicial system will hate their lawyer and this arithmetic reality permeates society.

This reasoning rang untrue then and rings untrue now. After all, everyone dies, but not everyone hates doctors. In fact, doctors are held in quite high esteem. I think the reason people hate lawyers is because so many are so crooked and so many take so much money for doing so little. If you are representing Exxon, taking a lot of money is excusable. Also, doing shabby work for the money is not an option when representing Exxon because Exxon has the means to monitor what is going on. There is plenty of moaning among the lawyers for the corporate elite that their bills and work product are highly scrutinized and they are being nickel and dimed – more like hundreded and thousanded. Unfortunately for me, an immigration lawyer not involved much in the business side of immigration, this is not a problem I have experienced.

Some recent experiences come to mind. One gentleman came to see me. His mother supports the family from her earnings in the fast food industry. He hired a lawyer to try to get him permanent residence. The lawyer was ordered by a judge to review the minuscule file and be prepared to discuss the case at the next hearing – half a year later. At the next hearing the lawyer had not reviewed the file. The judge told the client that he should consider getting a new lawyer. The client fired the lawyer. The lawyer is still demanding significant money he says he asserts he is owed.

Another gentleman came to me a few days later. He was told he needed to file a certain waiver to get his permanent residence because he stayed in the United States too long and then left. [The 10 year bar]. He hired a lawyer to help him. The lawyer filed a needless motion to reopen despite the fact that the case was not final and thus not ripe for reopening. You can’t reopen something that is not closed. He also wrote a legal-looking brief that essentially said that there are a lot of complicated explanations as to the meaning of the law that are too complicated to understand and apply to this case, but you should give the guy his green card. The motion to reopen was denied because the case was open and then the case was denied for failure to file a waiver. It cost the client more than $3000 for this brilliant legal strategy. I took over the case, quickly realized there was a misunderstanding (he had not been here too long), asked for a handful of documents from the gentleman to show this, presented these facts to the government and two weeks later he had his permanent residence card in his hand. The lawyer refuses to refund the $3000 for the pile of nonsense he wrote.

A last case comes to mind. A man prominent in the immigration lawyer business is boasting of his credentials helping the little guy and fighting the scourge of notarios. A champion of human rights. Believe me, I have seen people victimized by notarios, but far less often then victimized by lawyers. It is bad when people are victimized by notarios and even worse when the victims think the notario they hired is skilled like a lawyer because they misunderstand what a notary is in the U.S. or the notario held himself or herself out to be a lawyer. However, when a lawyer rips someone off it is even worse because there is an imprimatur of professionalism and ethics that should come with being a licensed attorney. By analogy, it is one thing to get injured by a nurse or EMT practicing medicine out of his or her apartment and quite another being injured by an incompetent licensed physician.

I was curious and did a Lexis search of appellate cases he filed. There were a lot of them and there were a lot of silly ones. Silly in this respect. Many people in immigration court ask for relief from removal called Cancellation of Removal. There are two kinds. One kind for permanent residents and one kind for nonpermanent residents. Both have residence requirements. Certain conduct makes a person ineligible for both kinds of Cancellation of Removal. There is also a discretionary component to both. The Cancellation of Removal for Nonpermanent Residents has a very difficult hardship requirement that the courts consider like a discretionary determination. The problem is that the discretionary aspect of the case is not appealable. If the judge says, you are eligible for Cancellation but I will deny it because there is not enough hardship or because I think you are a bad person who should not be allowed to stay in the United States when weighing everything in your case, these decisions are not appealable.

The law about the non-reviewability of discretionary determinations came into force in 1997. Like all new laws, lawyers test them. It takes a few years for the court of appeals to establish the contours of the law. By about five years from then, it became clear that the courts of appeal accepted this limitation on their jurisdiction and  discretionary decisions could seldom be cloaked otherwise, like violations of due process or because the first lawyer screwed up (ineffective assistance of prior counsel). In 1997, it was good lawyering to challenge nonreviewability because the law was not clear. But by now the courts of appeal have made it clear that these are not winnable issues. For a lawyer to have dozens of these cases in recent years means to me he is ripping off his clients. Unless he is filing them for no money to buy his clients time (which has its own ethical problems), it is quite obvious to me he is taking a lot of money from a lot of people and providing a false promise of success. This is not the stuff of prominence and certainly does not win my respect. There is always going to be a case that is actually a serious case where the law is being broken and an injustice done, and the court of appeals dismisses it cavalierly saying it does not review discretionary denials. However, it would be quite anomalous if a lawyer had scores of them – and certainly if he had scores of them in recent years. Such a lawyer’s big house and nice cars are being earned by deceiving the poor. That I cannot abide.

There is nothing wrong with making money and there is nothing wrong with being successful. Also, we live in a free market economy and no one is forced to sign a contract. However, when a person uses his law license to give confidence that he will do a good job and fails to do even minimal preparation, or files pointless nonsense particualrly when an easy solution is obvious, or makes a living providing false assurances to people, this is not caveat emptor. This is fraud against the poor.  Posted April 10, 2010.



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