An immigration attorney unfortunately is not always a client’s closest ally.

Wednesday, July 31st, 2013
By: Jonathan MontagJ.D.

In theory, a client’s closest friend, most trusted confident, and strongest advocate is his lawyer. No confidences are more strongly protected. A lawyer who violates a client’s confidences risks losing his or her license and even his or her freedom.

The reality is not so lofty. I have written about it here and here and here.

Too often immigration lawyers over-charge, over-promise, and under-perform. Too often they seek benefits a client is not eligible for and not even arguably eligible for. Why? Money. Turning away clients who you cannot help does not pay the mortgage. Charging a reasonable fee does not line the coffers like an unconscionable one. Working hard, educating oneself, and learning the law is not as enjoyable as bar hopping or sailing. Immigration law changes every day – keeping up with it can be an unprofitable drag, so an all-to-common response is to just not do it.

The usual response to criticism by some of these lawyers is a Libertarian one. There are lots of attorneys around. A wise client should shop around, get informed, test the market, and then make a decision. However, being a lawyer is somewhat different than other merchants in the marketplace. Clients believe the license to practice law implies a higher purpose than making money by completing the sale. When a waiter or waitress pushes drinks and appetizers, you know he or she is often pushing sales for sale’s sake. When an attorney pushes services – unnecessary ones, impossible ones, harmful ones – you assume he or she has your best interests in mind. Just like you would not expect that your doctor is simply profiting off you, you do not expect that your lawyer could act so crassly and selfishly. In economics, the term is “market failure.”

Immigration lawyers and government agencies rightly battle those who practice law without a license. USCIS has an initiative to fight it.  Little is done to combat the improper practice of law by lawyers.

Don’t get me wrong. Even with the best lawyer, sometimes the client will lose. Sometimes the best arguments in favor of an outcome are defeated by other arguments. Sometimes there is an elusive case that leads to defeat. Sometimes eligibility does not inevitably lead to success – particularly in matters of discretion. In many cases, all you can do is try. What a lawyer must be is realistic – with himself or herself and his or her client.

Pending in the California legislature is a bill to reign in the practice of immigration law by lawyers.  The merits of the law are debatable – even the most ethical and selfless lawyer can find objections to portions of it. The point is that state legislators must know what immigration lawyers do not want you to know – many are not working for their clients’ best interests. Until real policing mechanisms are instituted, many clients will be paying serious money for nothing or worse, to their own detriment. Legislatures are entering the market to correct what morality, fair play, and market forces are not correcting – exploitation of foreigners by immigration lawyers. If legislation is not the answer – the Libertarian response is that regulation makes things worse – than other answers are needed. Certainly, no solution should bar zealous advocacy, but a solution is needed to combat duplicitous advocacy. Posted July 31, 2013.


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