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Is It Still A Federal Case? An Unintended Consequence of Arizona v. USA

29 Apr

By Gary Endelman

Of all the unexpected consequences of Arizona v USA, perhaps the least likely is the potential reshaping of licensure regulations for the immigration bar. So long as the states did not seek to regulate immigration, lawyers licensed in one state could practice immigration law in another, save for those jurisdictions such as California and Colorado that banned such practice. Relying on ABA Model Rule 5.5(d) and Supreme Court precedent in the case of Sperry v. Florida, 373 US 379, 383-84 (1963), immigration was a federal practice and any credentialed advocate could join in. That is why USCIS recognized this multi-jurisdiction bar in 8 CFR 292.1(a)(1) and 1.1(f). The State Department is no less courteous:

9 FAM 40.4 N12.3 Local or U.S.-Licensed Attorneys Practicing Abroad  You must extend to a U.S. attorney who has been practicing abroad and is a member of a State bar association or to a local attorney-at-law, the same courtesies in correspondence that are extended to an attorney practicing in the United States, provided you are satisfied that the required relationship exists.

This has never been without controversy. New York makes out of jurisdiction lawyers register every two years at a $375 fee. In Texas, a solo immigration practitioner from New York State moved to Houston but did not bother to sit for the Texas bar exam.  She was not given a Texas-size welcome; the Unauthorized Practice of Law Committee of the Texas State Bar sued her, expressing a concern for the integrity of the Texas family and penal code as well as the potential harm to Texas residents. Ultimately, the case was dropped. See John Council, Out of Bounds: Lawyer Without Texas Bar Card Fights for Right to Practice, 18 Tex. Law. 24. (2002); Gregory Siskind, New York Immigration Lawyer Wins Battle to Practice in Texas, Immigration Daily. For those who want a deep dive into the delicacies of this controversy, see the wonderful article by Charles Kuck and Olesia Gorinshety as well as the masterful insights provided by Cyrus Mehta.

The exemption from state bar rules depends upon dealing exclusively with federal law. Can this easily or always be done? That is the concern voiced by Texas Ethics Opinion No. 516:

Without issuing an opinion on the subject of unauthorized practice of law, the committee assumes that the representation of clients in Texas by an out-of-state attorney solely on issues or matters of federal law in the area of immigration and nationality law before the U.S. Immigration and Naturalization Service and in federal courts does not constitute the unauthorized practice of law in Texas. The committee further assumes sat this is incorrect regardless of whether the out-of-state attorney lives in or outside of Texas, maintains an office in Texas, or is employed by an attorney who is licensed to practice law in Texas, so long as the representation of clients in Texas by an out-of-state attorney is in fact limited only to issues or matters of federal law…However, the committee recognizes that the foregoing assumptions do not resolve all unauthorized practice of law problems presented in this question. As a practical matter, it simply may not be possible to separate federal and state law issues when representing clients on matters under the U.S. Immigration and Nationality Act. Representing clients on immigration and nationality law may require an out-of-state attorney to know and advise such clients on issues and matters involving Texas law. For example, Texas law governing family matters such as marriage, divorce and adoption may be determinative in certain immigration cases; likewise, immigration law questions may necessarily involve giving advice on Texas criminal law statutes, Texas employment laws, or other Texas law. Accordingly, the risk of engaging in the unauthorized practice of law in Texas inevitably increases with the number of immigration and nationality cases handled by an out-of-state attorney.

This is where SB 1070 comes in. If the Supreme Court finds that Arizona can use its retained police powers to regulate and punish conduct by and the presence of undocumented immigrants, then it will be much more difficult to separate state from federal law in the analysis of any immigration problem,whether in Arizona or in all the other States that either have their own state immigration laws already or will be encouraged to adopt them.  No longer will immigration lawyers be able to refrain, if they can now, from state law questions. Should this happen, and the lines between state and federal jurisprudence between irretrievably blurred to the point where they cease to exist, it is hard to imagine how any immigration lawyer who is not licensed in the state where they practice can avoid engaging in the unauthorized practice of law. Do we really want this? As Proverbs warns us, he “who troubleth his own house shall inherit the wind.”