Although the Trump administration is calling for more restrictive policies on immigration to the United States, the foreign-born still made up 13.6 percent of the country’s population in 2017. Theresa Cardinal Brown and Jeff Mason, Immigration Trends and the Immigration Debate, Bipartisan Policy Center (Aug. 2017), https://bipartisanpolicy.org/wp-content/uploads/2017/08/BPC-Immigration-Trends-and-the-Immigration-Debate.pdf. This sizeable group is not homogeneous. Although some immigrants are highly-educated tech workers with skilled worker visas and are likely to purchase properties in expensive markets, other immigrants labor in service sector jobs for lower wages and may be purchasing real estate in more affordable communities. Id. at 3. This article presents some basic concerns and advocates for an inclusive approach to representing immigrant clients in real estate closings.
Earning Your Client’s Trust
Although immigrants to the United States may come from developed nations, the vast majority of immigrants come from developing countries. Many immigrants from developing countries express greater levels of trust in informal institutions (family, religious, and cultural groups) than formal ones, such as governments, financial institutions, and even the legal profession. In some, but not all, cases, immigrants may approach a lawyer less from the perspective a lawyer might expect (“this attorney represents me and therefore I can trust him/her”) than from a place of suspicion (“this attorney is an institutional player and institutions are untrustworthy, therefore this attorney might be untrustworthy as well”). Simply put, one of the most significant differences between representing native-born and immigrant clients in any matter is that the lawyer must generally earn the trust of the immigrant client.
In the author’s experience, a lawyer can earn the client’s trust by following a three-pronged approach: (1) showing that the lawyer cares from an emotive standpoint by taking time with meetings, projecting warmth, and listening; (2) responding to all communications in a more than timely fashion, which usually means answering emails and phone calls within a period of hours; and (3) projecting confidence to signal that the client is in good hands.
Showing the lawyer cares involves getting to know the client through asking questions about where the client is from in a tactful and respectful manner, the client’s experience with purchasing properties and with lawyers generally, and the client’s opinions and expectations of lawyers. Some good questions to include in a first meeting with the client are:
• Have you worked with a lawyer before? Can you describe that experience?
• In the country of your birth, how do most people view lawyers? Are they considered trustworthy?
• What do you expect from me as your attorney? What is a “good attorney” like?
After establishing a rapport with the client to the extent possible with these icebreakers, the attorney should discuss the transaction, focusing on the financial aspect. Above all else, maybe even more than feeling marginalized in some cases, immigrant clients tend to fear being taken advantage of and can be unusually apprehensive about even straightforward aspects of a real estate transaction, such as escrow. A good approach might include discussing the escrow agent’s obligations with a statement that implies not only that following ethical obligations is very important because it avoids sanctions but also that it helps build business through word-of-mouth (e.g., “[i]t is important to me to meet all of these obligations because I want to avoid any problems professionally, and I want you to let others know they can come to me for good services”).
Lawyers in other countries vary in terms of their education, the prestige associated with the position, and the work they perform. American lawyers receive juris doctor degrees, typically after seven or more years of university work, but lawyers in other countries may practice after receiving a bachelor’s degree. Most states in America have few law schools, but states or provinces in other countries may have several law schools. In Brazil, for example, there are law schools in many small towns, and law degrees are achieved after only four years of study.
Similarly, legal systems can vary vastly among nations. English-speaking nations where many laws are judge-made tend to use a common law system, but nations speaking Latin-based languages often have civil law systems under which laws are codified and precedent has less importance. In these civil law systems, lawyers look up answers in rule books as opposed to reading decisions. Thus, a lawyer might have to explain to a client from a civil law country that an American judge’s decision matters because the client may not understand why such decisions should have any effect on their particular situation.
If possible, and to avoid surprises, all fees should be discussed at the outset. This includes confirming that the client understands how commissions work, explaining tax adjustments, and explaining the legal fee multiple times. A worksheet in both English and the client’s language can come in handy, where the client simply checks off a box indicating the client understands the specific fee item. This might seem like the work of a real estate agent or loan officer, but the buck ultimately stops with the real estate lawyer—if the client refuses to close because he or she was not made aware of a fee item, the lawyer, not the party to whom the fee is going, will be blamed for it. Poring over a sample closing disclosure (with a message at the top of the first page written in oversized letters in both English and the client’s language indicating that “this is a sample and does not reflect your transaction”) is often a good idea.
A Good Translator Is Invaluable
According to the Modern Language Association in 2010, foreign-language speakers in just the state of Massachusetts spoke a variety of idioms: 35.6 percent spoke Spanish, 14.1 percent spoke Portuguese, 5.27 percent spoke French, 5.27 percent spoke Chinese, 4.22 percent spoke French Creole, 3.42 percent spoke Italian, 2.94 percent spoke Russian, and other foreign-language speakers spoke Vietnamese, Greek, Arabic, Cambodian, Polish and other languages. Modern Language Association, Most Spoken Languages in Massachusetts in 2010, MLA Language Map Data Center, https://apps.mla.org/map_data (last visited Oct. 22, 2018). Nationally, 19.62 percent of the population speak languages other than English. Id.
It is always better to find an attorney who speaks the client’s language. That attorney can personally discuss the transaction in detail in a way that makes the client feel comfortable. Furthermore, in many communities, the lawyer himself becomes a symbol of the success of the community as a unit so that sitting down with such a lawyer becomes a way to affirm the immigrant client’s own identity. A Guatemalan immigrant can view a Hispanic lawyer not only as an attorney but as a community member who has “made it,” a sign that his or her own children can become professionals in the United States. Employers seeking to hire Spanish-speaking attorneys should consult with organizations such as the Hispanic National Bar Association, which maintains a career center. Other language groups maintain similar associations, though usually with significantly fewer members.
In the absence of a lawyer who speaks the client’s language, an administrative professional is the second best option. Many good administrative professionals in Massachusetts speak Brazilian Portuguese, for example, and serve the state’s large Portuguese-speaking population. These professionals often exercise an outsized role in small offices, not only translating and helping with administrative duties but also helping to forge connections with local ethnic organizations. In Los Angeles, where there is a large Armenian population, similar professionals are available.
The last and least preferable option is using a professional translation service such as Language Line. Although the attorney might be able to make it through a meeting with the client, these services fail to assure the client that someone is concerned for them, has invested in their community, and has worked with people like them before. The client is left with a feeling that getting into contact with the attorney is too much of a hassle, and their concerns can go unaddressed until they snowball into larger problems.
Document Every Move
Although every lawyer should guard against conflicts of interest, maintain good records, and insist that clients who make unusual choices sign documents indicating that they have been informed of the possible repercussions, this is especially necessary when attorneys are working with immigrant clients because of the potential for cultural or linguistic misunderstandings. If the client is informed of the possibility of performing a 1031 exchange, for example, but decides not to pursue this option, the client should sign a form (in both English and the client’s native language) indicating that the client understands that he or she has been provided with this option but has decided not to pursue such an exchange.
Emphasizing this documentation is not tantamount to trusting these clients less than most clients. It is a realistic assessment of the possibility that the client may have misunderstood one or more issues as a result of the client’s cultural background, even when an attorney or administrative professional speaks the client’s language and has experience with similar clients. Thus, the attorney should explain the issues carefully and require the client to acknowledge that the attorney has made such an effort.
Immigrants purchase homes and start businesses, and they require professionals to represent them in these ventures. Attorneys who would like to represent immigrant clients in real estate transactions should be aware that immigrant clients often first approach attorneys from a perspective of suspicion. They may require patience and a bit of hand-holding and can at times misunderstand very basic fundamentals of real estate law. Lawyers who are aware of these issues and who dedicate themselves to serving the foreign-born community will find their practices to be rewarding and the clients to be appreciative—essential components of any worthwhile legal endeavor.