Immigration Decision Holds Ethical Lessons for Lawyers

A U.S. court of appeals has held that ineffective assistance of counsel claims in immigration cases require actual notice to counsel, illustrating the strict application of procedural requirements. ABA Section of Litigation leaders say the decision highlights potential ethical pitfalls for practitioners.

Lack of Notice Is Fatal to Ineffective Assistance of Counsel Claim

In Point du Jour v. U.S. Attorney General, the petitioner appealed an order of removal to the Board of Immigration Appeals (BIA) and moved to remand the case based on a claim of ineffective assistance of counsel. The BIA denied the appeal and motion to remand, concluding that the petitioner failed to satisfy all procedural requirements for ineffective assistance of counsel claims set forth in Matter of Lozada.

The Lozada test requires that first, the motion must be “‘supported by an affidavit of the allegedly aggrieved respondent . . . set[ting] forth in detail the agreement that was entered into with former counsel’ with respect to the actions to be taken and what representations counsel did or did not make to the respondent in this regard[.]” Second, “former counsel must be informed of the allegations and allowed the opportunity to respond[.]” Third, the motion must “‘reflect whether a complaint has been filed with appropriate disciplinary authorities’ with respect to any violation of counsel’s ethical or legal responsibilities, ‘and if not, why not.’”

On further appeal, the U.S. Court of Appeals for the Eleventh Circuit held that the BIA did not abuse its discretion in determining that the petitioner failed to substantially comply with the second prong of Lozada by notifying his former attorney of the ineffective assistance of counsel claim. The petitioner did submit an affidavit regarding his attempts to contact former counsel by phone, and he also filed complaints against his former counsel with the Florida Bar and the Executive Office for Immigration Review.

However, the appellate court found that while the lawyer “may have been difficult to reach or evasive,” nothing in the affidavit demonstrated that the lawyer had actual notice that his assistance had been ineffective or been given an opportunity to respond. The court concluded that the filing of disciplinary complaints could not satisfy the second prong because that would “eviscerate the separate nature of the Lozada requirements” and because disciplinary complaints do not trigger automatic notice to an attorney. Accordingly, the appellate court denied the petition for review.

This decision is “a fairly typical example of the strict procedural hurdles that a plaintiff in this position faces,” observes Merri A. Baldwin, San Francisco, CA, cochair of the Attorneys’ Liability Subcommittee of the Section of Litigation’s Professional Liability Litigation Committee.

Ineffective Assistance Claims and Disciplinary Grievances Are Distinct

The appellate court got this decision “absolutely right,” states Jeanne M. Huey, Dallas, TX, cochair of the Website & Written Content Subcommittee of the Section’s Ethics & Professionalism Committee. “As a practical matter, an immigration attorney’s response to notice that an ineffective assistance of counsel claim is being brought against them in a motion to reopen, and their response to a grievance with the State Bar are very different, and it makes sense that notice of those different claims are separate requirements,” Huey adds.

Deficient lawyers should not avoid their clients, Section leaders observe. “There is actually little incentive for the lawyer to interfere with the client’s ability to succeed on an ineffective assistance claim,” notes Baldwin. “To the extent the client succeeds, the damages the client sustains as a result of the lawyer’s negligence are potentially lessened or even avoided altogether,” she explains.

State Bar Grievance Can Threaten Practice

Because of the Lozada requirements, “a lawyer who receives notice of an ineffective assistance of counsel claim in an immigration case knows there will probably be a grievance filed,” Huey asserts. If it is filed for the sole purpose of satisfying the third Lozada requirement and lacks real allegations of ethical violations, and “if the intake personnel at the State Bar is familiar with Lozada, it will often be dismissed before the lawyer has notice of it, and they will never have to respond at all,” she adds.

However, many things that might occur during the course of an immigration case “could allege a valid disciplinary rule violation and make it past the initial screening,” continues Huey, citing examples of failure to communicate, to keep a client updated on the case, or to appropriately manage documents or handle fees. And in contrast to an ineffective assistance claim, “you can have violation of a disciplinary rule without any prejudice or harm to the client,” Huey explains.

While an ineffective assistance of counsel claim usually is not a serious threat to a lawyer’s practice, an ethics grievance can be, warns Huey.

Documentation Is Key for Lawyers and Clients

“The key takeaway for everyone—clients and lawyers—is always the same: put everything in writing and preserve it,” Huey advises. For petitioners, “it is very important to comply with the three procedural requirements of Lozada,” Baldwin notes. Clients can create a better record to meet this requirement by making a written record of notice, she counsels.

Lawyers should be prepared to respond to ineffective counsel claims and bar grievances, Huey states. “That means document everything from the scope of representation, to the payment of fees, to all communications,” she details. Huey also suggests having key forms available in every language spoken by non-native English-speaking clients the firm serves, as well as staff who are fluent in those languages available to assist clients when they call. If you communicate via text message, “get the software you need to make sure those messages are promptly uploaded and saved to electronic storage,” Huey recommends.

Careful documentation “may not save you from an ineffective assistance claim, but on the grievance side, if you don’t have adequate evidence of what you did in the case, the outcome of a grievance may come down to a swearing match between you and the client, which is something no one wants,” Huey concludes.