Immigration Decision Holds Ethical Lessons for Lawyers

• Pages: 7-7
• Date: 01 July 2021
• Author: C. Thea Pitzen
• Subject Matter: Civil Law

Published in Litigation News Volume 46, Number 4, Summer 20 21. © 2021 by the American Bar A ssociation. Repro duced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

U.S. cour t of appeals has

held that inee ctive assis-

tance of counsel c laims

in immigration c ases

require actua l notice to

counsel, illustrating the strict applica-

tion of procedura l requirements. ABA

Litigation Secti on leaders say the

decision high lights potential ethical

pitfalls for practitioners.

In Point du Jour v. U. S. Attorney

General, the petitioner ap pealed an

order of removal to the B oard of

Immigration Appeals (BIA) based on

a claim of ineec tive assistance of

counsel. The B IA denied the appeal,

concluding tha t the petitioner failed to

satisfy all pro cedural requirements fo r

ineective assistance of counsel claims

set forth in Matter o f Lozada.

Lozada require s f‌irst that the motion

must be “‘sup ported by an adavit of

the allegedly a ggrieved respondent

. . . set[ting] forth in det ail the agree-

ment that was entere d into with former

counsel’ with re spect to the actions

to be taken and what re presentations

counsel did or di d not make to the

respondent in this regard[.]” Second,

“former cou nsel must be informed of

the allegation s and allowed the oppor-

tunity to respond [.]” Third, the motion

must “‘ref‌le ct whether a complaint has

been f‌iled with appropriate disciplinary

authorities’ with re spect to any viola-

tion of counsel ’s ethical or legal respon-

sibilities, ‘and i f not, why not.’”

The U.S. Co urt of Appeals for the

Eleventh Circuit subse quently held

that the petitione r had failed to com-

ply with the second p rong of Lozada.

The petitioner su bmitted an ada-

vit regarding his at tempts to con-

tact former co unsel by phone and

his complaint s to the Florida Bar and

the Executive Oce fo r Immigration

Review. However, nothing in the a-

davit demonstrate d that the lawyer

had actual noti ce that his assistance

had been ine ective or been given an

opportunity to respond.

Immigration Decision Holds Ethical

Lessons for Lawyers

The appellate co urt got this deci-

sion “absolutely ri ght,” states Jeanne M.

Huey, Dallas, TX , cochair of the Website

& Written Content Sub committee of

the Section’s Ethic s & Professionalism

Committee. “As a prac tical matter, an

immigration attorney’s response to

notice that an ine ective assistance of

counsel claim is b eing brought against

them in a motion to reop en, and their

response to a grievan ce with the state

bar are very die rent. It makes sense

that notice of those di erent claims are

separate requirements,” Huey adds.

Def‌icient law yers should not avoid

their clients . “There is actually littl e

incentive for the law yer to interfere with

the client’s abi lity to succeed on an inef-

fective assista nce claim,” notes Merri A.

Baldwin, Sa n Francisco, CA, cochair of

the Attorneys’ Liability Subcommittee

of the Litigation Sec tion’s Professional

Liability Litiga tion Committee. “To the

extent the client su cceeds, the dam-

ages the client su stains as a result of

the lawyer’s negligence are potentially

lessened or even avoided altogether,”

she explains.

“A lawyer who receives notice of an

ineective ass istance of counsel claim

in an immigration c ase knows there

will probably be a g rievance f‌iled,”

Huey assert s. If it is f‌iled for the sole

purpose of satisf ying the third Lozada

requirement a nd lacks real allegations

of ethical violatio ns, and “if the intake

personnel at t he state bar is familiar

with Lozada, it will often b e dismissed

before the lawyer ha s notice of it, and

the lawyer will never have to res pond at

all,” she adds .

However, many thi ngs that might

occur during an i mmigration case

“could allege a val id disciplinary rule

violation and ma ke it past the initial

screening,” co ntinues Huey. And in con-

trast to an ineec tive assistance claim,

“you can have violatio n of a disciplin-

ary rule witho ut any prejudice or harm

to the client,” Huey expl ains. While an

ineective ass istance of counsel claim

By C. Thea Pitzen , Litigation News As sociate Editor

usually is not a ser ious threat to a law-

yer’s practice, a n ethics grievance can

be, she warns.

Lawyers shoul d be prepared to

respond to inee ctive counsel claims

and bar grievanc es. “That means docu-

ment everythi ng from the scope of rep-

resentation, to th e payment of fees, to

all communic ations,” Huey advises. Sh e

also suggest s having key forms avail-

able in every lan guage spoken by non-

native English-speaking clients the f‌irm

serves, as well a s sta who are f‌luent in

those languages available to assist cli-

ents when they ca ll. If you communicate

via text message , “get the software you

need to make sure thos e messages are

promptly uploaded and saved to elec-

tronic storage,” Huey recommends.

“The key takeaway for ever yone—

clients and law yers—is always the

same: put every thing in writing and

preserve it,” Hu ey advises. “Careful

documentatio n may not save you

from an ineec tive assistance claim,

but on the grievanc e side, if you don’t

have adequate eviden ce of what

you did in the case, th e outcome of

a grievance may come dow n to a

swearing match between you and

the client, which i s something no one

wants,” she con cludes.

RESOURCES

Point du Jou r v. U.S. Attorney Gen ., No.

18-15235 ( 11th Cir. June 4, 2020).

Matter of Lozad a, 19 I&N Dec. 637

(BIA 198 8), a’d sub nom. Lozada v.

Immigration & Na turalization Serv., 857

F.2d 10 (1st Ci r. 1988).

Digital versio ns of all Ethics stories,

including link s to all resources and

authorities, a re available at https://bit.l y/

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