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UNAUTHORIZED PRACTICE OF LAW IN IMMIGRATION MATTERS

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									   UNAUTHORIZED PRACTICE O LAW IN IMMIGRATION
                          F
                    MATTERS


     The complexity of immigration law necessitates closer scrutiny and
control upon the unauthorized practice of law in this area. Although all
states have statutory schemes which restrict the practice of law to li-
censed attorneys,' many courts are reluctant to define the "practice of
law."2 Consequently, case-by-case determinations are necessary to ex-
ercise control over unauthorized practice. Activities most often cited as
constituting the practice of law are preparing legal documents, render-
ing advice regarding one's legal rights and responsibilities, and repre-
senting others in legal proceedings.3 Similarly, these are the most fre-
quently encountered activities in immigration matters in which the
unauthorized practice of law is involved. The state courts' inherent
power to regulate the practice of law is generally well-established4;
however, further inquiry must be made in immigration cases given the
federal government's regulation thereof.= Furthermore, numerous ethi-
cal considerations arise in an immigration context which do not often
surface in other areas of the law. As a result, the need for stricter con-
trols over unauthorized practitioners of law in immigration cases is vital
                             s
to protect public interests a well as the competency and efficiency of
the legal s y ~ t e m . ~



    Regulation of the legal community dates to the twelfth century,
with the first unauthorized practice statute being passed in 1292.' The

     1. Hunter, Klonoff, A Dialogue on the Unauthorized Practice of Law, 25 M L , L. REV.
6 (1979).
     2. Law. Man. of Prof. Conduct (ABA/BNA) 21:8001 (1986).
     3. Id.
     4. Unauthorized Prac. of Law Comm. of the Sup. Ct. of Colo. v. Crimes, 654 P.2d
822, 823 (1982) (citing numerous cases affirming the inherent power of the judiciary to
regulate the unauthorized practice of law).
     5. Wildes, Obtaining Permanent Residence for Aliens, 7 IMMIGRATION & NATURALIZA-
TlON 27 (1968).
     6. Law. Man. of Prof. Conduct (ABA/BNA) 21:8004 (1986).
                                         P C ES
                                          R
     7. Brief Amicus Curiae, 36 UNAUTH. A . N W 14, 23-24 (1972).
152                  The Journal of the Legal Profession

bar was established in response to public demand for qualified attor-
         . regulating the field, bar examinations and continuing legal edu-
n e y ~In~
cation programs aid in maintaining the high legal standards which the
public expect^.^ In addition, the Code of Professional Responsibility,
which governs licensed attorneys, is the accepted standard of ethical
conduct for lawyers.lo
     Even today, the primary consideration in prohibiting laymen from
practicing law is the protection of the public.ll In fact, when determin-
ing activities which constitute the practice of law, courts consider the
potential harm to the public if a particular activity is undertaken by a
layman.12 Such considerations help guard the public from abuses both
inside and outside the c o u r t r ~ o m In regulating the field, courts not
                                         .~~
only redress past injuries but also attempt to prevent future harm.14
     Numerous potential problems exist when legal matters are handled
by unlicensed and unauthorized laymen. The conduct of nonlawyers is
not governed by the same standards governing licensed attorneys, es-
pecially regarding matters such as integrity and legal competen~e.'~     Fur-
thermore, the attorney-client privilege protects only those who obtain
proper legal counsel.l6 Because laymen seeking legal advice are often
unable to assess what constitutes appropriate professional service, pub-
lic policy dictates that no one be allowed to enter the confidential ca-
pacity of an attorney unless subject to the requirements of the legal
profession.17 Laymen soliciting legal assistance put their trust in those
retained for service.18 Thus, strict regulatory schemes are necessary in
furthering a state's compelling interest in securing public protection
against the unqualified layman who attempts to give legal advice.lS

    8. Id. at 24
    9. Bennion, Van Camp, Hagen & Ruhl v. Kassler Escrow, 635 P.2d 730, 734 (Wash.
1981).
     10. Brief Amicus Curaie, supra Note 7, at 31.
                  OE                   R S O S IT C
                                              BL
     11. MODEL C D OF PROFESSIONALE P N I L I Y E 3-1 (1979) [hereinafter MODEL
CODE].
     12. Brief Amicus Curiae, supra Note 7, at 26.
     13. Id. at 27.
     14. Washington State Bar Ass'n v. Great W. Union Fed. Sav. & Loan, 91 Wash. 2d
4 8 , , 586 P.2d 870, 878 (1978) (citing In re Droker & Mulholland, 59 Wash. 2d 707,
721, 370 P.2d 242, 249 (1962)).
     15. M D L CODE C 3-3 (1979).
           OE          E
     16. Id.
     17. Id. at E 3-4.
                 C
     18. Florida Bar v. Brurnbaugh, 355 So.2d 1186, 1193 (Fla. 1978).
     19. State v. Niska, 380 N.W.2d 646, 649 (N.D. 1986).
                       Unauthorized Practice of Law                            153

      Although every state prohibits nonlawyers from practicing law, the
definitions20 of the "practice of law" vary significantly among jurisdic-
          .~~
t i o n ~ Both the ABA Model Code of Professional Responsibility and
the ABA Model Rules of Professional Conduct avoid a specific defini-
tion, although both support the restriction of such practice to licensed
attorneys.22 In fact, Canon 3 of the Model C0de,~3devoted to the pre-
vention of unauthorized practice, asserts the futility of developing a sin-
gle definition for the practice of law.24Instead it states:
     "Functionally, the practice of law relates to the rendition of services
     for others which call for the professional judgment of a lawyer.
     The essence of the professional judgment of the lawyer is his edu-
     cated ability to relate the general body and philosophy of law to a
     specific legal problem of a client; and thus, the public interest will
     be better served if only lawyers are permitted to act in matters
     involving professional judgment."25


     State legislatures, judiciaries, and bar associations generally set
forth guidelinesz6by which determinations of law practice violations are
made on a case-by-case basis.27 Two types of activities usually recog-
        s
nized a constituting the practice of law are the preparation of legal
documents and advising or assisting others concerning their legal rights
and obligations.28 Violations involving these activities are consistently
found in immigration cases.



     Historically, immigration problems have resulted from nonlawyers
                                       s
holding themselves out to the public a immigration experts through an
immigration agency or ~ervice.~e    Though some actually misrepresent

    20. The use of "definitions" connotes different activities and components making
up the practice of law.
    21. Law. Man. on Prof. Conduct (ABA/BNA) 21:8003 (1986).
    22. Id.
    23. MODEL CODEEC 3-5 (1979).
    24. Id.
    25. Id.
     26. Guidelines are set forth by legislatures through statutes, by the judiciary
through case law, and by bar associations through advisory opinions.
    27. Law. Man. on Prof. Conduct (ABA/BNA) 21:8004 (1986).
    28. Id.
    29. Florida Supreme Court Restrains Law Practice of Immigration Law, 40 UNAUM.
PRAC. E S 7 (Spr./Sum. 1976); See Unauthorized Prac. Comm., State Bar of Tex. v.
      NW
                      The Journal of the Legal Profession

themselves as attorneys, many purport to merely aid customers in the
preparation of immigration and naturalization document^.^^ Clearly,
                         s
misrepresenting oneself a an attorney is a violation of state regulation
on admittance to the bar.31Preparation of legal documents, however,
requires a more extensive inquiry. The ABA Committee on Unautho-
rized Practice of Law stated in a 1936 opinion that:
      It is not against public interest or contrary to public welfare for one
      not licensed to practice law, to appropriately fill in the blanks of a
      legal instrument which, within a reasonable time of its use, has
      been selected, or prepared, specifically for that particular use by
      one licensed to practice law who has also instructed such a user of
      the instrument fully regarding the essential details requisite to exe-
      cution and creation of a valid, legally operative, instrument and re-
      garding any further act of filing, recordation, or similar step, prereq-
      uisite to protection of the parties and their rights.32

In fact, courts have held that completing forms or preparing documents
under a customer's direction is permis~ible.~3 sale of .printed legal
                                                 The
forms is also lawful, although some states disallow instructions to ac-
company such forms.a4 Clearly, the extent to which a layman can pre-
pare legal documents is at best questionable.
     Problems associated with preparing documents occur when one
goes beyond simply completing forms for customers. An essential ele-
ment of the practice of law includes rendering legal advice to clients.35
Moreover, using specialized legal knowledge in selection of the proper
documents and the preparing of such documentation, reinforced by
representations that such preparation creates a legal, effective, desired
result, necessarily constitutes the practice of law.36Thus, a nonlawyer

Cortez, 692 S.W.2d 47 (Tex. 1985); Oregon State Bar v. Ortiz, 77 Or. App. 532, 713
P.2d 1068 (1986).
     30. See Florida Supreme Court Restrains Lay Practice of Immigration Law, 40
UNAUTH.         ES
         PRAC.N W 7 (Spr./Sum. 1976).
     31. Note, McCarthy v. Panaccio, 35 UNAUTH.            ES
                                                    PRAC. N W 14, 19 (Dec. 1970) (dis-
cussing McCarthy v. Panaccio, No. 1202, C.P. Philadelphia, Pa. (decided Oct. 24, 1969)).
     32. Completing Blank Forms of Legal Instruments As Constituting Unauthorized
Practice of Law, 36 UNAUTH.              42
                             PRAC.NEWS (1972) (reporting a 1936 decision of Standing
Comm. on Unauth. Prac. of Law, ABA).
     33. Ortiz, 77 Or. App. a t , 713 P.2d at 1070 (1986) (citing Oregon State Bar v.
Fowler, 278 Or. 169, 563 P.2d 674 (1977)).
     34. Brumbaugh, 355 So.2d at 1191.
     35. State Ex. Rel. Disciplinary Comm'n v. Owen, 486 N.E.2d 1012, 1013 (Ind.
1986).
     36. Preferred Title Servs. v. Seven Seas Resort Condominium, 458 So. 2d 884, 886
                        Unauthorized Practice of Law                                155

who selects or advises customers regarding the proper immigration or
naturalization forms to gain a certain status in the United States is
enaged in the unauthorized practice of law.37
     Technical and procedural expertise is essential in immigration cases
because of the complexity in this area of law. Before any document is
prepared, one must consider all consequences and solutions t o a num-
ber of possible courses of action which might arise in a single immigra-
tion case.38One court best summarized the argument for the prohibi-
tion of nonlawyers in preparing immigration and naturalization
documents when it stated:
      Knowledge of statutes, cases and agency regulations are required
      in order to select the appropriate form, and to evaluate both the
      nature and the quantum of proof required in each type of case.
      The legal rights and privileges involved are some of the most basic
      to the individual: the right to travel, the right to obtain or retain
      residence in this country, the right to citizenship, and liability to
      criminal prosecuti~n.~~

     Given the potential for problems in immigration matters and the
consequences thereof, even licensed attorneys should have some spe-
cial knowledge of immigration law before undertaking such a case.40
Because "virtually no immigration case is routine,"41 the choice of the
proper legal form and its subsequent filing is crucial to the success of an
application.42 lmmigration attorneys constantly represent clients in de-
portation cases which would not have arisen if proper procedures had
been followed in the initial steps o f the application process.43Legal skill
and judgment are essential in correctly analyzing the potential benefits
and risks involved in a particular case, especially when compared t o the
potential consequences of a wrong d e c i ~ i o n . ~

(Fla. Dist. Ct. App. 1984).
      37. Ortiz, 77 Or. App. at ,         713 P.2d at 1069 (1986); Unauthorized Prac.
Comm., State Bar of Tex. v. Cortez, 692 S.W.2d 47 (Tex. 1985); McCarthy, No. 1202
Philadelphia, Pa. (decided Oct. 24, 1969). Even those courts which allow services to sell
prepared legal forms with instructions prohibit any suggestions, explanations, or other
conduct which might be regarded as advice to customers.
      38. Immigration & Naturalization, Ill. Inst. for CLE 1-17 (1978).
      39. Note, supra note 31, at 21.
      40. Wildes, supra note 5, at 23.
      41. Ortiz, 77 Or. App. at ,      713 P.2d at 1070.
      42. Id.
      43. Wildes, supra note 5, at 23.
      44. Ortiz, 77 Or. App. at -,     713 P.2d at 1070.
156                  The Journal of the Legal Profession

      Because violations of immigration laws easily occur,45 knowledge
of the proper procedures for immigration and the ability to analyze the
effects of following or disregarding such processes are crucial. An alien
may have legal status, may have entered the country illegally,46 or may
be uncertain about his actual status.47Since the forms filed with the
immigration authorities furnish the address of the alien, deportation
may be more likely for an illegal alien who has improperly filed.48More-
over, forms filed incorrectly often place an alien in a delinquent status
with immigration services, thereby subjecting him to d e p o r t a t i ~ nFur-
                                                                          .~~
thermore, since the attorney-client privilege exists only between an at-
torney and his client, information harmful to an alien seeking legal ad-
vice can legally be elicited from an unlicensed layman.
      Misplaced trust in a nonlawyer is illustrated by a Texas couple
found guilty of the unauthorized practice of law.50 This couple, the
Cortezes, advertised their experience in all types of immigration cases,
although they had no legal training. If a customer did not fit a category
under certain form instructions, he would be told that the Cortezes
could not help him. The Texas Supreme Court ruled that an alien could
construe this information, when coupled with the advertisements, as
precluding him from further action in his quest for changed legal sta-
        ~l
t u ~ .Many aliens were, in fact, harmed because they relied upon the
Cortez's supposed immigration expertise.
      In order to protect public interests, laymen cannot advertise or im-
ply the ability to perform legal services, even when none are ren-
dered.52This has become a particular problem in cases in which a per-
                         s
son advertises himself a a notary public. Although the words "notary
public" appear to be similar to words in other languages, different
meanings have been attached to these words by various societies. In
the United States, a notary public is a citizen with little or no particular
influence in the community because of his status as            Other coun-
tries, however, may afford greater meaning to the title. For example, a

    45. Immigration & Naturalization, Ill. Inst. for CLE 1-22 (1978).
    46. Id. at 1-16.
    47. Wildes, supra note 5, at 23.
    48. Ortiz, 77 Or. App. at ,      713 P.2d at 1070; Cortez, 692 S.W.2d at 50.
    49. The Florida Bar v. Moreno-Santana, 322 So. 2d 13, 15 (Fla. 1975).
    50. Cortez, 692 S.W.2d 47.
    51. Id. at 50.
    52. Burch v. Mellor, 43 Pa. D.& C. 597, 600 (1942).
    53. Mexican Aliens Victimized by "Notaries Publicos," 2 I ~ ~ ~ ~ I G R A T I O N
                                                                         NEWSLETTER28
(Aug./Sept. 1979).
                       Unauthorized Practice of Law                            157

notario publico in Mexico is "an attorney of good standing who has
practiced law for at least five years and who has been certified by the
state government through application."= In Italy, a notary public "must
be a lawyer who takes a special examination to qualify for the office,
and has exclusive jurisdiction to prepare certain legal document^."^^
Thus, when aliens in the United States, especially those with little or no
education, need legal advice on immigration matters, they often turn to
notary publics.5eTo curtail this problem in Texas, the state legislature
passed the Texas Deceptive Trade Practices Act which states that a
notary public cannot advertise as a notario publico unless he is a li-
censed attorney.57Furthermore, if one advertises himself as a notary
public, he must include that he is not an attorney, is not licensed to
practice law, and cannot collect fees for such activitie~.~~     According to
INS District Director William Chambers, a notary public cannot re-
present an alien in administrative hearings unless he has first obtained
training and certification from the Justice D e ~ a r t m e n t . ~ ~

                                GOVERNMENT
                      IV. FEDERAL      INTERESTS

     Although states generally adjudicate problems arising from the un-
authorized practice of law, the federal government has a vested inter-
est in immigration cases. Thus, the existence of federal government
preemption and the necessity of representation before public agencies
must be determined in addition to determining whether the practice of
law is being conducted when examining immigration matters.
     Although the federal government preempts the states in most im-
migration, naturalization, and citizenship matters, its power is exclusive
only in determining entrance requirements and conditions of persons
desiring admittance to the United state^.^ Congress derives its constitu-
tional authority to formulate immigration policy from its power to regu-
late commerce with foreign nations.e1Accordingly, four agencies have
been charged with the responsibility of administering immigration

    54. Id.
    55. Note, Supra Note 31, at 18.
    56. Mexican Aliens Victimized by "Notdrios Publicos," 2 ~WCRATIONN E W S m R 28
(Aug./Sept. 1979).
    57. Id. at 28.
    58. Id.
    59. Id. at 29.
    60. Oregon State Bar v. Ortiz, 77 Or. App. 532, 713 P.2d 1068 (1986) (quoting De
Canas v. Bica, 424 U.S. 351, (1976)).
    61. U.S. CONST art. I 5 8, c l . 3, 4.
158                  The Journal of the Legal Profession

lawse2 The Immigration and Naturalization Service of the Department
of Justice (INS) and the Department of State are the most important.
The INS primarily reviews the various applications filed within the
United States, while the State Department handles those filed in the
consular offices abroad. The U.S. Health & Human Services and the U.S.
Department of Labor are also involved with immigration matters.s3 In
addition t o these application responsibilities, each agency has the
power to permit and regulate lay representation in its proceedingss4
under the Federal Administration Procedures Act.6S Generally, one li-
censed to practice law before the highest court of any state will be
allowed to practice before an agency.66Though formal admission is not
             federal regulations dictate who can appear before agencies
in immigration and naturalization hearing~.~e   Representatives are limited
to attorneys, law students and graduates not yet admitted to the bar,
reputable individuals who appear at the request of the party involved
and without remuneration, and accredited representatives of organiza-
tions qualified for recognition, and accredited official^.^^ Thus, a state
may not keep a nonlawyer from practicing before a United States
agency if he is permitted to do so by the particular agency rules.70
      Generally, representation of another party at a public agency hear-
ing, in which that party's legal rights and responsibilities are being estab-
lished, involves the practice of law." Moreover, immigration agencies
consider any act of a party's attorney or representative, including ap-
pearing at an official proceeding or filing any official document, to be
the practice of law.72
      Therefore, if a nonlawyer is not permitted to appear before an
agency or file documents under agency requirements, the inquiry be-
comes whether he is immune from state r e g ~ l a t i o nDeciding a patent
                                                           .~~
law case, the United States Supreme Court stated: "[ilf the federal gov-

   62. Wildes, supra Notes 5, at 27.
   63. Id. at 27-28.
   64. Law. Man. on Prof. Conduct (ABAIBNA) 21:8007 (1986).
   65. 5 U.S.C. 5 3555(b)(1977).
   66. Wildes, supra Note 5, at 28.
   67. Id.
   68. Representation & Appearances, 8 C.F.R. 5 292.2 (1986).
   69. 8 C.F.R. 5 292.1 (1986).
   70. State v. Sperry, 373 U.S. 379, 384 (1963).
   71. Kyle v. Beco Corp., 109 Idaho 267, ,         707 P.2d 378, 382 (1985) (citing
numerous cases to this effect).
   72. 8 C.F.R. 5 1.1(i)(1986).
   73. Ortiz, 77 Or. App. at -  ,     713 P.2d at 1069.
                      Unauthorized Practice of Law                          159

ernment has not granted a license in this area, a state is free to enforce
its own licensing regulation^".^^ Thus, by analogy, one not authorized
by federal law to practice before immigration agencies is subject to
state r e g ~ l a t i o n . ~ ~

                               VI. CONCLUSION
     Obviously, for protection of public interests, curtailment of the un-
authorized practice of law in immigration matters must be expedient.
Potential problems are numerous, and the consequences thereof are
dire. Although no absolute definition of the practice of law exists, activi-
ties which constitute it are well-established. Therefore, case-by-case de-
terminations can be made with respect to possible violations of the law
in this area. Legal knowledge and analytical skills are necessary to the
rendition of sound legal advice in immigration inquiries. Public policy
dictates a regulatory scheme be closely followed, and violators thereof
be prosecuted.
                                                                  Tina R. johns




    74. Id. at ,     713 P.2d at 1069-70 (quoting In re Amalgamated Dev. Co., 375
A.2d 494 at 497 (D.C. Ct. App.), cert. denied, 434 U.S. 924, (1977)).
    75. Id. at ,    713 P.2d at 1070.

								
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