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Immigration Consultancies And The Unauthorized Practice Of Law In Canada

by Susan Fernandois

Editor's Note: This article appeared in the September 2004 issue of Immigration Canada, our sister publication. We have included relevant links so that Immigration Daily readers may follow the thread.

I read with considerable interest the Karas' article and several responses to it. I write from the United States where the unauthorized practice of immigration law remains prohibited; however, I must voice my agreement with Mr. LeBlanc, who stated, "I meet with clients daily who have been superbly represented by colleagues in Immigration Consultancy, and those who have been both taken advantage of and poorly represented by members of the bar." He said that he was sure that Mr. Karas had the opposite story to tell, and that the truth lay somewhere in between. In fact, I believe the truth lay right there.

The Virginia Supreme Court as quoted in Mr. Karas' article, said, "Aliens are especially vulnerable to the unauthorized practice of law." I would posit that aliens are especially vulnerable to the incompetent, shoddy and unscrupulous practice of law, regardless of whether the practitioner is a consultant or an attorney. Examples of this abound in both camps, unfortunately. I know attorneys who have rescued cases from their negligent colleagues as often as they have from consultants. Lawyers are not immune from bad character, and let's face it - it is a lack of good moral character which causes professionals to be lured into corrupt dealings by high profits and low accountability.

There are essentially two prongs to the fitness test for immigration practitioners - 1) training and competency and 2) accountability. On the first point, let us recognize that an immigration lawyer in the United States is not required to take even one course in immigration law or to belong to the American Immigration Lawyers Association (AILA). In fact, most law schools don't offer enough courses in immigration law to become a specialist, and in reality, one becomes a specialist only after years of being in the trenches, being mentored by and networking with other experts in AILA, constant reading and studying, and caring deeply about the serious harm that could result from negligence.

Hence, anyone can walk out of law school; hang out a shingle and practice immigration law on a population which is hardly trained to distinguish between a competent lawyer and a cad. In most states there are no specialty exams required to establish competency in immigration law before being allowed to practice. Most would-be immigrants tend to choose lawyers with staff members who speak their language - not necessarily the best tactic. Many attorneys practice a laundry list of specialties, among which immigration, which in my humble opinion, is a red flag of incompetence. Immigration law is so complex and changes so frequently as to require an exclusive focus. That brings us to accountability.

We assume perhaps that the attorney will be more wary of malpractice because of his accountability to the Bar. We are led to believe that if an attorney defrauds a client, provides ineffective assistance or commits malpractice, there is recourse to a disciplinary process through the State Bar, Board of Bar Overseers. Yes, theoretically there is, but the quality of some Bar review processes is dubious, not to mention the high threshold for a finding of negligence. Add to that the fact that defrauded aliens are the least likely to lodge a complaint. They often don't speak English, and after losing a great deal of money to the negligent attorney, are hardly in a position to hire someone to draft the complaint to the Bar - that is, if they haven't already been deported. Furthermore, some bar review boards don't have sufficient immigration expertise to be able to judge the merits of a complaint. I have had personal experience with one such board.

In practice, an attorney is often only disciplined for extremely egregious violations and often only for matters involving the mishandling of funds, not the ruining of lives. I personally feel that negligent attorneys are more dangerous than negligent consultants because their illustrious credentials lull prospective clients into a false sense of trust, especially those from hierarchical societies where titles, licenses and credentials are very well respected. Lastly, attorneys tend to protect their own and will usually only bring a complaint to the Bar as a last resort, or if forced to in order to obtain a finding of ineffective assistance before an immigration judge.

In conclusion, I believe that anyone who is sharp, intelligent, caring and willing to put in the time to master the craft, can learn to handle most routine immigration cases. A good consultant, like a good attorney, will know when to refer a case to someone with superior knowledge and expertise, or to seek counsel from that expert before mishandling a case. AILA has a marvelous network of mentors, but only the conscientious will utilize them.

To me, practicing immigration law is like practicing medicine. Someone's life is in your hands, and it is a responsibility not to be taken lightly. But for the absence of a standardized and rigorous training and credentialing process, immigration consultants could be analogous to nurse practitioners, many of whom are considered to be as competent as physicians.

Until we find a way to hold everyone, attorneys and consultants alike, to the same standards of training, knowledge, competency and accountability, aliens will continue to be victims of exploitation and negligence by the unscrupulous among us.

About The Author

Susan Fernandois has a Masters in International Policy Studies from the Monterey Institute of International Studies. Susan Fernandois resides in Lowell, Massachusetts and has been involved in immigration law for many years.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.