The poor quality of the immigration bar is a much discussed topic in certain circles (I wrote about it here). A recent study in the Cardozo Law Review that was featured last month in the New York Times provides an opportunity to discuss the situation, and give my two cents about how to improve representation for immigrants. According to the Times, “The study was conducted by a group of lawyers and researchers under the auspices of Robert A. Katzmann, a federal appellate judge in New York City.” “Judge Katzmann blames predatory lawyers who are not familiar with immigration law for much of the poor representation.”
The Times reports that Immigration Judges in the New York City area were surveyed, and they were less than pleased with the quality of the attorneys practicing in their courts. The judges said that 33% of immigrants have “inadequate counsel” and 14% have “grossly inadequate” counsel. The judges “gave private lawyers the lowest grades, while generally awarding higher marks to pro bono counsel and those from nonprofit organizations and law school clinics.”
I believe that Immigration Judges bear some blame for the lawyers’ poor performance. Aside from the fact that I’m a vindictive so-and-so who doesn’t like judges dissing attorneys, why would I blame judges for attorney behavior? Let me explain.
Immigration Judges are bound by certain ethical rules, which are set forth in the Ethics and Professionalism Guide. The Guide states that Immigration Judges–like all DOJ attorneys–have a duty to report allegations of misconduct by other Justice Department attorneys and “a duty to report allegations of misconduct by non-Department attorneys.” See United States Attorneys’ Manual (“USAM”), Chapters 1-4.100 & 1-4.150 (“Allegations of misconduct by non-DOJ attorneys or judges shall be reported to OPR [Office of Professional Responsibility] for a determination of whether to report the allegation to appropriate disciplinary officials.” (emphasis added)). Thus, it is mandatory for IJs to report misconduct.
According to IJs in New York, 14% of attorneys are “grossly inadequate,” meaning:
They are often poorly prepared or make incoherent arguments in court. Some fail to present key evidence or witnesses. Others simply do not show up.
Under the rules of the Guide and the USAM, it seems pretty clear that Immigration Judges are duty-bound to report attorneys who engage in at least some of these bad practices. To the extent that IJs do not report such behavior, they are encouraging and enabling incompetent and/or dishonest attorneys to continue preying upon naive aliens.
Based on my experience working at an Immigration Court and as a practitioner, everyone–including the IJs–knows who the bad actors are. I am not talking about attorneys of good will who periodically screw up. We all make mistakes. I am talking about attorneys who routinely fail to provide minimally competent work and who regularly destroy their clients’ chances to remain in the U.S. Given many foreigners’ inexperience with our system and their fear of the authorities, it is critical that Immigration Judges report incompetent and dishonest lawyers to the appropriate disciplinary committees. When they fail to fulfill this duty, they allow the harmful conduct to continue.