ETHICS IN IMMIGRATION PRACTICE NEW PRACTITIONER’S GUIDE eth·ics (compliments of dictionary.com) plural noun 1. ( used with a singular or plural verb ) a system of moral principles: the ethics of a culture. 2. the rules of conduct recognized in respect to a particular class of human actions or a particular group, culture, etc.: medical ethics; Buddhist ethics. 3. moral principles, as of an individual: His ethics forbade betrayal of a confidence. 4. ( usually used with a singular verb ) that branch of philosophy dealing with values relating to human conduct, with respect to the rightness and wrongness of certain actions and to the goodness and badness of the motives and ends of such actions. Legal ethics encompasses an ethical code governing the conduct of persons engaged in the practice of law and persons more generally in the legal sector. As Immigration Practitioners, our ethical code is determined by our governing body, the Immigration Consultants of Canada Regulatory Council (ICCRC). On June 30, 2011, Citizenship and Immigration Canada published Operational Bulletin 317, An Act to Amend the Immigration and Refugee Protection Act which passed into law the Minister of Immigration’s authority to make regulations designating or revoking a body responsible for the regulation of immigration consultants under A95(1). It was this Bulletin that gave ICCRC the authority of regulator of Canadian immigration consultants. http://www.cic.gc.ca/english/resources/manuals/bulletins/2011/ob317.asp As most of us in practice know, the transitional period from the former regulator to ICCRC will be finished on October 28, 2011. ALL immigration consultants MUST be enrolled with ICCRC by that date in order to be recognized as authorized to represent or advise clients for legal purposes pertaining to immigration matters. ICCRC has drafted our Code of Ethical Conduct which is pending approval by the Board of directors. The draft can be found at: http://www.iccrc-crcic.ca/admin/contentEngine/contentImages/File/Code_of_Conduct__English.pdf It is our responsibility as consultants to be knowledgeable about and to follow this Code of Ethical Conduct. Our Code provides definitions and instructs immigration consultants about the following Rules: ETHICAL PRACTICE PROFESSIONALISM COMPETENCE QUALITY OF SERVICE ADVISING CLIENTS CONFIDENTIALITY CONFLICTS OF INTEREST PRESERVATION OF CLIENT PROPERTY ICCRC MEMBER AS ADVOCATE RETAINER AND FEES JOINT RETAINERS WITHDRAWAL FROM REPRESENTATION OUTSIDE INTERESTS ADVERTISING, SOLICITATION AND MAKING SERVICES AVAILABLE DISCRIMINATION AND HARRASSMENT ERRORS AND OMMISSIONS DISCIPLINARY AUTHORITY RESPONSIBILITY TO ICCRC AND OTHERS While this Code is in draft format, we expect it to be approved very shortly by the Board of ICCRC although there may be revisions. However, for the purposes of this presentation, we will accept the Code in its’ current format while remembering that it is our responsibility as consultants to remain apprised of any and all changes that may occur. PUTTING THE CODE INTO OUR PRACTICE As new practitioners setting up your business or even for those with a few years of experience but have not worked with more experienced mentors, it can be overwhelming and even difficult to know exactly what is expected of us from an ethical perspective. In this presentation, we will not discuss all of the Rules contained in the Code, but rather, those that new practitioners most often face when starting out. I like to think that many of the Rules in the Code of Ethical Conduct are based on the principals of common sense and what your parents taught you when you were a child. RULES WE TEACH CHILDREN RULE #1 – DON’T TELL LIES – to anyone. Don’t lie to your client, don’t lie to CIC, CBSA, IAD, IRB, ICCRC, ANYONE. Just don’t lie. This rule from childhood is applicable and affects us in all of the Rules in our Code of Conduct. We are required to act with honesty and integrity at all times. When it comes to advertising our business, we must be honest and refrain from embellishing our experience. There is always the dilemma of how to get business when we don’t have experience. That doesn’t mean you have to lie to attract business. It’s no excuse. The presentation regarding how to market your business for immigration practitioners is coming at a later date but I will say that you can focus on what you DO know and your training. You can use your previous business and life experience to enhance your marketing without having to resort to lies or embellishment. Also, remember that the Act and the Regs take misrepresentation very seriously and this includes lying by omission. This is when an important fact, or in legal terms “material fact”, is knowingly and deliberately left out and results in leaving another person with a misconception. So simply speaking, tell the WHOLE truth. RULE #2 – DON’T CHEAT AND STAY AWAY FROM BAD PEOPLE – this should be self-explanatory and goes with Rule #1. The Rule entitled Advising Clients gets into more specific detail. It states: Avoid Corrupt Associations An ICCRC member shall take all reasonable measures to avoid becoming the tool or dupe of an unscrupulous Client, person or persons associated with same. In plain language, this means that you are not allowed to partake in any corrupt or illegal activity and cannot associate with people you suspect or know are involved in this type of activity. Cheating Prohibited An ICCRC member must exercise due care and not knowingly assist in or encourage: any dishonesty, fraud, crime or illegal conduct, the provision of misleading information, the omission of any required relevant information, counselling of a Client on how to violate the law or counselling of a Client on how to avoid punishment, but this shall not preclude the provision of information as to mitigation of possible sentence for breach of IRPA As an immigration consultant, your obligation is to represent and advocate on behalf of your clients within the limits of the law. We all want our clients to get what they want but we cannot counsel them to cheat in order to obtain their goals. RULE #3 – BE NICE AND RESPECTFUL – as immigration consultants we must hold ourselves to a high standard of behavior. It is our duty to serve our clients with honour and integrity. We are in a privileged role and play a vital part in maintaining the integrity of Canada’s immigration system and the administration of justice. Do not take this lightly. We are required to be civil and courteous in all of our communications (verbal and written) with all members of the public including but not limited to clients, CIC officers, each other, even if these people are not nice to us! This does not mean that you must suffer abuse silently. You CAN be assertive and courteous at the same time. You CAN also hold others accountable for bad behavior. If you believe you are being treated in a disrespectful manner by another consultant, government employee or even client, know what remedies are available to rectify the situation. Some consultants may have a communication clause built into their retainer agreement that may allow them to withdraw from acting on behalf of a client because of abusive behavior. Take pride in your designation as a Regulated Canadian Immigration Consultant and hold yourself accordingly. Expect others to do the same. As a self-regulating profession, WE are responsible for how the public, the government and all of her agencies view us. Practicing high standards of professionalism is our obligation as immigration consultants. New practitioners must take this very seriously and remember that each and every one of us is responsible for the reputation of the group as a whole. So be professional! RULE #4 – DON’T TELL TALES – this is one of the most important rules we have when it comes to working with our clients. Maintaining client confidentiality is vital to building a reputation as a trusted consultant. You are required to keep confidential at all times all information concerning the affairs of a client, both business and personal, unless you are authorized to disclose it by the client or as required by law. Also know that confidentiality survives the retainer. This means that even though your client’s file may be finished or you are no longer their representative, your duty of confidentiality never dies. In practice, we often need advice or guidance regarding various situations. An example of this could be where you have prepared and submitted your 100th work permit application but you have never had one processed through a particular embassy. We may ask for advice from others and you can maintain client confidentiality by properly framing your questions leaving out identifying information about the client. However, if a client’s employer calls you to ask about the status of the work permit, you must determine if you have authorization from the client to disclose this information. Authorization can be implied depending upon the circumstances but you have to know. When in doubt, ask your client directly if you can disclose information to particular individuals and pertaining to what. For example, you may be able to disclose the status of the work permit application however, if the employer asked you how old the applicant’s spouse is, this has nothing to do with the work permit itself so you are not at liberty to tell him or her. If you don’t know, err on the side of caution. It will keep you and your client safe. We, as practitioners, encounter situations that require us to make decisions determined by the Rules of Professional Conduct each and every day. With practice, the majority of these Rules will become automatically ingrained into your thought and decision making process. However, all of us have had questions about how to interpret the Rules when faced with circumstances unique to us. If you require direction and assistance regarding any of the Rules, contact ICCRC for clarification and guidance. One final piece of advice, if you are ever faced with a situation where you have a choice between ethics or money, choose ethics. ALWAYS. KNOWING YOUR LIMITS AND WORKING WITH MENTORS New practitioners are often at a disadvantage when entering the marketplace of immigration consulting. They often don’t have any actual experience representing clients. How do you overcome this so you can gain the practical experience you require while also upholding your duty of competent service to the client? #1 – KNOW YOUR LIMITATIONS AND FIND YOUR NICHE When I first began practicing as an immigration consultant I used my previous business and personal experience in order to build my immigration practice. I knew how to do 3 things; work permit applications, labour market opinions and overseas spousal sponsorships. As a recruiter, I had assisted employers by recruiting qualified individuals to fill positions in Canada. I worked with an immigration lawyer who provided representation to those who wanted to hire a representative to prepare their work permit and temporary resident visa applications. I was lucky that as the point of contact between the lawyer and the worker, I was able to learn by osmosis the laws and procedures pertaining to work permits. I had also assisted many employers in the preparation of Labour Market Opinions applications or prepared them myself. It was allowed in those days. As a recruiter, I knew provincial and federal labour laws including those pertaining to the recruitment of foreign nationals. I had also sponsored my own spouse to come to Canada. So I had some practical knowledge and now the legal training and authorization to act on behalf of clients. When starting out, I chose to only work in areas of immigration where I had experience. Many new consultants DO have some practical experience in certain areas of immigration law. I know consultants whose previous work involved international students and in their former jobs they had to learn the laws associated with study permits. They have niched their immigration practice around foreign students. I strongly believe, at least when starting out, that a niche oriented business plan is best. Immigration is a big area of law. If possible, do what you know first. You will be more competent, you will know the practical application of the law, and you will be better able to serve your client. This allows you to build a reputation as a competent consultant. You should know inside and out the sections of the Act, Regulations and Manuals that have to do with your areas of practice. This does not mean that even in those familiar areas you will never need advice or guidance. You will. Some new and strange circumstance will appear and you will be unsure of what to do. That’s when you seek guidance from more seasoned practitioners. #2 – ALTERNATIVE WAYS TO GAIN EXPERIENCE AND SEEK MENTORS I believe that an excellent choice for new practitioners with no experience that can be related to immigration law is to seek a support position with an experienced individual or in a firm of immigration lawyers or consultants. The work you will do will allow you to obtain the practical experience you need to become a competent consultant. Another choice is to ask to be of service. I am fortunate enough to have some friends who are immigration lawyers. I also am not shy and I asked them to let me help them on cases in areas where I was interested in learning and expanding my practice. I called myself the grunt and did a lot of free work. But I wanted to be able to expand my area of practice outside of what I was doing so the experience and guidance I received by doing this free work has paid off a thousand fold for me. It’s not easy doing work for free but it was a choice I made and I don’t regret it. This also opened up doors for me to be junior counsel with some seasoned representatives because they knew the quality of my work and have now taken a vested interest in my progression as a consultant. Another idea may be if you have a client who has an issue that you have no experience dealing with and feel it is beyond your ability to gain the knowledge you need to become competent, then with the permission of your client, approach a seasoned practitioner and discuss the opportunity for them to work as your mentor while you both earn an agreed upon fee from the work performed. This is almost the same scenario as above except you are bringing the client and you get paid! #3 – REFER THE CLIENT OUT There may be times when you are approached by a potential client with a situation that: a. Is completely over your head and you have no interest in learning; or b. Is completely over your head and you do not have the time to learn it. These are situations where you should refer the client to a qualified practitioner. If this occurs a lot, you may want to set up an agent agreement with some consultants who practice in areas you don’t so that you are paid a fee for the referral. SETTING FAIR AND REASONABLE FEES Where to Start In just about all professional services, fees are set based on a number of criteria: Years of Professional Experience Complexity of Service Quantity of Work Fair Market Comparison for Same Service Target Market Years of Professional Experience – For new practitioners, does this mean that your fees should be lower than those charged by a seasoned consultant doing the same work? In a word, YES. Never undervalue experience. One day, you will be the experienced consultant and will definitely understand how the years you’ve been in practice add value to your service. The upside is obvious in that once you have gained experience and a reputation for quality work, you can raise your fees. Complexity of Service – The more legally complicated a case is will justify higher fees being charged. They require more expertise, research and often more time to complete. Quantity of Work – Again, this is self-explanatory. Fees are often set by estimating the amount of time it will take to complete a service. Fair Market Comparison for Same Service – This is where you learn what your competitors are charging to provide a similar service and your price your services competitively. Target Market – You can make some assumptions regarding ability to pay based on your target market such as Investors. I often hear that people will set their prices also based on the cultural market that intend to work in but I am not a big fan of that. I don’t think your country of origin should impact what your fees are. This would put you at risk of breaching the Rule of Ethical Conduct regarding Discrimination. In my opinion, you are much safer setting your fees based on the type of service you are providing rather than a client’s ethnicity or cultural community. Hourly vs. Flat Rate There are typically two fee types you will encounter in immigration legal practice. The first is the hourly rate. Hourly Rate – First, you should have only one hourly rate. Period. It is not a good idea to negotiate your hourly rate as it could cause problems with clients who will be looking to continually try to get you to reduce your fees. This is not good for your business or reputation. Word will get around that your “rate” is NOT really your “rate” and you will find yourself doing more work for less money. So set it and stick to it. Then you should be aware of the overall amount of time it will take to complete a case and provide a total fee estimate based on this with a clear stipulation in your retainer that any extraordinary circumstances will result in more hours being billed. Discuss this with your client at length. Ensure that they understand that new or extraordinary work will require more time and increase their bill. If you’ve estimated and agreed upon 10 hours of work only to have new circumstances arise, you should immediately discuss this with your client and provide a new estimate based on the additional work to be done. Get your client to sign off on this. You must also keep meticulous time sheets to ensure that you have proper accounting records in the event of a dispute with your client regarding fees. You must have evidence to back up your claim of number of hours spent on a file. Flat Fee Rate – Many practitioners set flat fee rates for various types of applications and services. This is what I do. My retainer is quite clear as to what is encompassed in my service and that if there is an additional application or service to be done, a new retainer is required. There is some risk involved in flat fee rates in that there may be extra or unforeseen work involved within an application but I cannot charge extra for the work. However, overall I have found that there is balance with flat fees. Sometimes one case will require extra work and another will go more smoothly than anticipated. Formula for Setting Fee Rates Calculate your overhead costs. Overhead includes rent, telephone, office supplies, staff salaries, association and membership fees, marketing, and any other item that is a business expense. This will allow you to know the cost of being in business and how much you need to earn BEFORE you make enough money to be able to pay yourself. Then, work to create estimates of the number of hours it takes to complete an application and/or service. You also should estimate the number of hours you will work per month. By having all of these numbers, you will be able to set both hourly and flat fee rates that will allow you to pay our bills as well as pay yourself. Example: Standard LMO application Fee: $1500 flat rate Number of Hours: 10 hours $1500/10 = $150 per hour But how much of that is profit? Monthly business overhead: $2500 Number of billable hours worked per month: 80 80 X $150 per hour = $12000 - $2500 = $9500 per month Do NOT ever forget to account for INCOME TAXES. Figure out the amount of taxable income you earn and tax rate for your earning bracket and set aside money every month to pay your taxes. If the above is taxed at a rate of 35%, this means you will have to set aside $3325 per month for taxes. Your net earnings are $6175. Understanding Supply And Demand On the surface, the relationship between price and supply and demand is simple. As demand increases relative to supply, there is an upward pressure on prices. Just about anyone you ask will know this. The reason for this phenomenon is elementary. Scarcity of supply makes consumers compete for a particular product, increasing their willingness to pay. Abundance of supply makes suppliers compete for consumers, increasing the suppliers' willingness to reduce their price to hold their share of the market. So, how does all this affect your practice? As in any market, an increase in the number of suppliers increases the amount and intensity of competition. This can lead to an increase in advertising and promotion on the part of immigration practitioners. Such activity informs consumers that there is a greater choice in the marketplace, causing consumers to shop. This puts downward pressure on prices. Prospective clients become more fee sensitive. Practitioners are forced to justify their fees and certain prospects reject them on that basis. This tends to make practitioners very insecure about their rates, especially when the volume of their business is down. The simplistic solution would seem to be just to offer the lowest price in town. You would then have all the business you could handle and get rich. This assumes a couple of things, both of which are false. First, it assumes that the only thing that all prospects care about is the price. Second, it assumes that all prospects automatically will be aware that you have the lowest rate in town. The reality is that being the low price leader in the legal market is the very worst thing you can do to your practice. It will cause your practice to flounder and fail. The first reason is that it takes more production to cover your expenses since every hour generates less revenue. This means that you have to have a high volume practice. To get that kind of volume, you have to get the word out that you are the low price leader, which means advertising (and more expense). Also, to handle the extra volume of unusable calls from the advertising (many of the calls you get from advertising will be people who want free legal advice), you will have to add more staff to answer the calls (more expense) or answer the calls yourself (lost production). The result will be that you will work very hard for very small amounts of money. There is an adage that you get what you pay for. This isn’t always true in our field as there are plenty people who charge too much for what they provide. On the other hand, if someone is priced too cheaply, you have to wonder about the quality of the work they do. New practitioners should not price themselves so cheaply in an effort to beat the competition as it can be difficult to raise their fees once they gain experience. The best suggestion in setting your fees is to base it on the combination of factors discussed earlier. As your expertise grows, you will be able to justifiably increase your rates if you wish. Build your reputation and the best method of getting new clients, referrals, will grow.
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