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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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