Technology for Immigration Lawyers
As you probably gleaned, some case management software is designed specifically for immigration practices. (For a detailed survey of these programs, see “Software for the Immigration Practitioner
An immigration lawyer’s client base may be more mobile than other lawyers’ client bases. After all, mobility is what immigration is all about. Because some immigration processes drag on for years, especially those waiting on bureaucracy or legislation, immigration clients may change addresses relatively more often while awaiting action on their cases. Immigration case management software might make it easier to keep track of such clients’ whereabouts.
Some immigration case management software contains forms for fee agreements and for non-engagement letters to use when a case is declined. Before relying on software to assist with client relations and responsibilities, first assure yourself that it conforms to the ethics rules in your local jurisdiction. Don’t depend on software just because it was designed “for lawyers”—unless you would let a stranger run your law office.
Immigration law listserves could be helpful, too. But be careful. Listserve communications present the possibility for ex parte communications between lawyers and judicial officers who are involved in a case. Also, because one never knows who might read or react to listserve postings, attorneys should avoid posting information on a listserve identifiable to particular cases or controversies. (L.A. County Bar Assn. Formal Opn. No. 514 (Aug. 15, 2005.))
Alan Goldfarb, of Davis & Goldfarb, PLLC, in Minneapolis, Minnesota, issued an interesting but serious warning in the AILA’s Immigration Practice News
(“Practice Safe Social Networking to Avoid Conflicts,” 2011 (3:1); tinyurl.com/kq8ofro
) for lawyers who access clients’ social media profiles: A lawyer jointly representing clients in a marriage-based petition, who found out from social media sites that one of the clients had engaged in marriage fraud, could have problems not resolvable even by the lawyer’s withdrawal.
Ethics rules nowadays are trending toward conformity with the American Bar Association (ABA) Model Rules of Professional Conduct. The U.S. Department of Justice’s Executive Office for Immigration Review conformed to the Model Rules when it changed the rules governing professional conduct and disciplinary proceedings for attorneys representing clients before that office. (73 Fed. Reg. 76914 (Dec. 18, 2008); effective January 20, 2009.) Even California, which never adopted any form of the ABA Model Rules, has (pending California Supreme Court approval) revised its Rules of Professional Conduct to conform to the ABA Model Rules.
Immigration lawyers might also note that the impact of technology and globalization on the legal profession was specifically studied by the ABA Commission on Ethics 20/20, which has issued reports on different areas of attorney regulation (tinyurl.com/3op6tx3
). Based in part on these reports, the ABA House of Delegates adopted amendments to the Model Rules in August 2012, imposing new affirmative duties
on lawyers to keep up with relevant technology and to protect electronically stored confidential client information.
The E-Mail Trap
Paradoxically, we know that e-mail travels the world willy-nilly, and that it is replicated who knows where; and we rely more on e-mail every day for transmission of secrets and confidential information. But hardly anyone encrypts e-mail because that is not (yet?) required.
Why worry? We’ve got the Electronic Communications Privacy Act (ECPA) of 1986. Under that law, however, an e-mail message loses its status as a protected communication and becomes just another database record after only 180 days. (18 U.S.C. § 2703.) This means a subpoena instead of a warrant is all that is needed for a government agency to force an e-mail provider to disclose e-mail that is more than six months old. (Ibid.
The Stored Communications Act (SCA) is likewise circumscribed. The SCA is a part of the ECPA intended to prohibit unauthorized access to stored communications, potential privacy intrusions not addressed by the Fourth Amendment. (United States v. Councilman,
418 F.3d 67, 81 (1st Cir. 2005.)) The U.S. Court of Appeals for the Fifth Circuit held last year that the SCA does not apply to data stored in personal computers or cell phones. (Garcia v. City of Laredo, Texas,
No. 11-41118, 2012 WL 6176479 (5th Cir. Dec. 12, 2012.))
The court reviewed district court decisions that concluded the “facilities” that the SCA was designed to protect “are not computers that enable
the use of an electronic communication service, but instead are facilities that are operated
by electronic communication service providers and used to store and maintain electronic storage. . . . [A] home computer of an end user is not protected by the SCA.” By the same reasoning, a cell phone does not provide “an electronic communication service” just because it enables use of electronic communication services. The court found, accordingly, that the text messages and photos stored on the phone at issue were “not in ‘electronic storage’ as defined by the SCA and are thus outside the scope of the statute.” (Ibid.)
The ECPA may not be worth much anyway, given what we have learned about the U.S. National Security Agency (NSA) PRISM program. The NSA uses PRISM to collect everybody’s
phone calls and Internet traffic.
Considering that the NSA has 40,000 employees and tens of thousands more private contractors, and that it shares information with an unknown number of persons at other federal agencies such as the Federal Bureau of Investigation, Central Intelligence Agency, Department of Homeland Security, and Secret Service, the point was made recently that any of the hundreds of thousands of people with access to the PRISM-hoarded information can find out if you’ve seen a psychiatrist, had serious medical conditions or taken particular medications, viewed pornography, had a bankruptcy or home foreclosure, received poor grades in high school or college, even had disciplinary letters in your employment files (tinyurl.com/q3bnf2w
; posted June 30, 2013).
How ironic is it that we use e-mail more than postal mail for confidential communications? E-mail carries far less legal protection than postal mail, which the government can’t collect, keep, or even read.
“Ethics Change with Technology.”—Larry Niven
Technology advances molto faster than codes of ethics. The technology lawyers use to help carry out ethical duties remains more complicated than the duties themselves. An immigration practice—given the mobile client base, government agency interactions, and politics of the day—may require greater technology and
heightened ethical awareness.