Immigration lawyers' misconduct targeted in federal proposal
Rule changes would set new minimum standards for the attorneys and give greater disciplinary power to judges rather than state bar regulators.
By Richard B. Schmitt
Los Angeles Times, August 23, 2008
Washington, DC — The Bush administration has quietly proposed to overhaul the disciplinary process for lawyers practicing in the nation's immigration courts, aiming to weed out abusive and incompetent ones.
The proposed changes would set new minimum standards of conduct for the attorneys and give judges greater power to punish them.
The proposal is part of a broader Justice Department effort — focused until now mostly on judges — to overhaul the immigration court system.
The rules would replace a disciplinary system that has long deferred to state bar regulators.
'Immigration judges should have the tools necessary to control their courtrooms and protect the adjudicatory system from fraud and abuse,' said Justice's Executive Office for Immigration Review, which circulated the rules for public comment late last month. 'This proposed rule seeks to preserve the fairness and integrity of immigration proceedings, and increase the level of protection afforded to aliens in those proceedings.'
Current rules subject immigration lawyers to sanctions when deemed 'in the public interest' — a category interpreted to include criminal and other serious misconduct.
The proposal is more specific, spelling out actionable offenses by a lawyer. Among them would be failing to adequately communicate with clients; lacking 'diligence' in filing court pleadings or taking other actions; or acting in a way that is 'prejudicial to the administration of justice or undermines the integrity' of the process.
Since 2000, the immigration review office has taken action against nearly 400 immigration lawyers — but most of those actions piggybacked on moves by state regulators.
Critics call the process time-consuming and ineffective in protecting clients.
The new rules would empower the executive office to summarily discipline lawyers convicted of a 'serious crime' or whose license has been suspended — without waiting for final action by state regulators.
'We have an acknowledged crisis in the immigration courts,' said Michele M. Benedetto, a professor at Golden Gate University School of Law in San Francisco.
'The simple fact of focusing on ethical issues . . . is a step in the right direction.'
The Bush administration launched a review of immigration courts after reports of judges wrongly deporting people or denying political-asylum bids because of faulty evidence or incompetence. The reports included cases of intemperate and abusive jurists and complaints about a growing case backlog.
The Justice Department announced measures to improve the quality of judging in August 2006, including proposals to subject judges to performance evaluations and law exams.
Critics say the department has been slow to implement the changes.
The effort was also dealt a setback by disclosures that when Alberto R. Gonzales was attorney general, department aides used political and ideological criteria to select immigration judges.
Advocates for immigrants said they supported raising standards for lawyers but worried the proposed rules were too vague.
'We need to take out the few bad actors,' said Reid Trautz, director of practice and professionalism for the American Immigration Lawyers Assn. in Washington. 'But at what cost to the rest of the profession who are already providing professional and ethical representation?'
The Justice Department said it would consider public comment on the proposal until Sept. 29.