Think Immigration: All You Need is Love Model Rule of Professional Conduct 8.3
The reporting requirement of Matter of Lozada, 19 I&N Dec. 637 (BIA 1988) pretends to align with a self-policing profession; in actuality, it is difficult (if not impossible) to square it with our ethical obligations. As my esteemed colleagues have pointed out time after time, Lozada uniquely requires immigration attorneys to report their colleagues in order to make out a case of ineffective assistance of counsel. And, even though Lozada explicitly sets the standard to reopen removal orders, its application is more far-reaching; agency decisions often reference it to require bar complaints against prior counsel in other contexts. The reasoning of Lozada is insidious; the Board of Immigration Appeals (BIA) explicitly stated that it was enacting this extra complaint requirement to “protect against collusion between [noncitizens] and their counsel in which ‘ineffective’ assistance is tolerated … because it results in a benefit to the [noncitizen] in that delay can be a desired end in itself…”; is meant to “deter meritless claims,” and somehow renders the documents “more reliable” for having been submitted to disciplinary authorities. To be clear, this exact same complaint requirement is completely unknown in the analogous criminal context. See, e.g. Padilla v. Kentucky, 559 U.S. 356 (2010) (Analyzing the first prong of Strickland and finding that an attorney who fails to provide readily available advice regarding the practically mandatory deportation consequences of a criminal guilty plea falls short; making zero mention of needing to make a bar complaint against prior counsel.)
Missing from this discussion is the reminder that we have an independent ethical obligation to maintain the integrity of the profession. The Model Rules of Professional Conduct (adopted and little changed by the vast majority of states) provide an independent obligation to report; Rule 8.3 Reporting Professional Misconduct states “A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.” The following section creates the same duty to report violations of judicial conduct, just saying. The Massachusetts comments to this rule note, “This Rule requires lawyers to report serious violations of ethical duty by lawyers and judges. Even an apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.”
Though they cover similar ground, it is ultimately difficult to square our ethical obligations with the Lozada reporting requirement. There are three key differences from following the Rules of Professional Conduct to the letter versus following Lozada.
First, comments to the rules indicate that “a lawyer may defer making a report under this Rule until the matter has been concluded, but the report should be made as soon as practicable thereafter.” There is good reason to delay the report. In my experience, bar counsel is often interested to know the outcome of the actions taken by new counsel to remediate the harm by prior counsel. Bar counsel are rarely experts in immigration law. Where new counsel alleges misconduct and prejudice by prior counsel, bar counsel looks to the agency or court’s take on this accusation. A decision by an adjudicator that prior counsel’s behavior fell short and prejudiced the client factors heavily into bar counsel’s consideration of whether a genuine case can be made against prior counsel. Opposite to Lozada’s reasoning, bar counsel can take the submission more seriously if the agency has evaluated it, rather than the other way around.
Second, the model rules balance the obligation to report against the confidentiality requirements of Rule 1.6. In other words, Lozada forces your client’s hand to report their personal information to state authorities; the Model Rules require appropriate authorization from your client to disclose such information.
Third, the model rules encourage us to use our judgement to discern if reporting is appropriate. For example, the California comments to Rule 1.8 explain that, “This rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this rule.” Lozada strips us of that judgment – even accidental or acknowledged errors by prior counsel must be reported.
If we are truly interested in maintaining the integrity of the profession, we should oppose the unnecessary flood of reports Lozada causes to disciplinary authorities. The volume of complaints by immigration practitioners does not pass unnoticed – disciplinary authorities concerned about true malfeasance must wade through oceans of pro forma reporting meant to comply with Lozada. This frustrates genuine oversight of the profession.
There are some truly bad actors out there “practicing” immigration law who take advantage of vulnerable noncitizens and work against the interests of justice. In years of complying with Lozada, I have taken part in reporting some of the worst of the worst: an attorney who told a vulnerable detained client to take voluntary departure to consular process despite their genuine asylum claim and unwaivable inadmissibility; an attorney who not only failed to withdraw when a conflict of interest arose, but favored one client over the other and advised his victim to withdraw all relief and leave the country; an attorney who left everything but the individual hearing to his paralegals; an attorney who filed hundreds of notices of appeal to the BIA only to fail to file hundreds of promised briefs; and an attorney who regularly forged his clients’ signatures on applications.
In some cases, disciplinary authorities do serve up justice. In Massachusetts, sufficiently numerous and compelling complaints against a particular attorney were taken up by the State Attorney General, resulting in an order to pay back hundreds of thousands of dollars to the attorney’s victims. This type of justice would have been impossible but for the numerous attorneys and clients who came forward to make the complaints.
We must not forget that first and foremost we serve the community of immigrants. Our ethical obligation to report true malfeasance by other attorneys works hand-in-hand with our obligations to our clients. It goes without saying that immigrants are often particularly vulnerable. Due to language barriers, cultural differences and lack of experience with the U.S. justice system, many of our clients cannot detect early enough that they are being disserved. Preventing exploitative practitioners from harming them must always be one of our goals. But our professional and ethical obligations are enough. They must be enough. We do not need Lozada.
