One of my clients was recently referred from the Asylum Office to Immigration Court due to his failure to file for asylum within one year of arrival in the United States. The client was not thrilled with the referral (as you can imagine) and with some other aspects of the interview, and so he filed a complaint with the Asylum Office. He did not tell me about the complaint until after he filed it. He said that he thought it would be better if I did not know, as it might jeopardize my other clients’ cases or my relationship with the Asylum Office.
In fact, there are times when advocating for one client might cause problems for future clients or relations with different government agencies. However, in immigration law, as in other areas of the law, the needs of the many do not outweigh the needs of the few or the one (i.e., the client).
Lawyers of course must be zealous advocates for our clients. But what do we do when advocacy for one client might result in problems for future clients?
Another way this question comes up at the Asylum Office is at the interviews themselves. I tend to take a less confrontational approach, as that is what works for me. A lawyer friend of mine takes the opposite approach. He is always complaining to supervisors and threatening to sue. I don’t know which of us has a higher approval rate, but his method works for him. Nevertheless, you can imagine how a lawyer who is confrontational in one case might receive a less-than-warm reception when he appears before the officer in the next case. But does that mean he should tone it down in case A in order to benefit the client in case B?
The question can also arise in Immigration Court. I once appealed an Immigration Judge’s decision to the Board of Immigration Appeals and won. When I was before the IJ in an unrelated case, he called me to the bench and spoke to me about the appeal. He did not seem particularly pleased to have been reversed. It so happens that I have a lot of respect for this Judge, and I do not think the appeal impacted his view of me or my other cases. Nevertheless, when he mentioned the appeal to me that day, it raised those concerns in my mind.
As to whether lawyers should hold back in one case in order to avoid possible harm in future cases, I think the answer is clearly “no.” We are obligated to zealously advocate for each client without regard for how it might affect future case. Of course, “zealous advocacy” does not mean being disrespectful or behaving inappropriately. But zealous advocacy might involve making complaints. Or filing lawsuits.
When I think about the question of the needs of the current client versus the needs of a future client, I think about Paul Farmer. He is the doctor, described in Tracy Kidder’s Mountains Beyond Mountains, who has done tremendous work in Haiti (and elsewhere) helping care for the sick and establishing community health clinics. Dr. Farmer was often faced with patients whose treatment would be expensive and risky. Other health professionals felt that the (limited) money available to treat people might be better spent on helping more people who had a greater chance for a successful outcome. But Dr. Farmer seemed always to help the person in front of him, regardless of the cost. When he came to the next patient, he would gather the resources he needed and treat that person as well. From an ethical point of view, this comports with the idea that life is sacred, and that each human life is infinitely valuable.
I think it is the same in asylum law. We have to do our best with the case before us, regardless of whether it might jeopardize relations with an Asylum Officer or a Judge. In my experience, though, when we make arguments respectfully, and when those arguments are legally supportable, the adjudicators do not hold such behavior against us. So while the needs of a future client do not outweigh the needs of the current client, we usually do not have to choose between the two.