An article entitled "Lawyer Without Texas Bar Card Fights for Right to Practice", linked in the August 20, 2002 issue of Immigration Daily reports that former AILA president, and prominent immigration attorney Peter Williamson has brought a lawsuit on behalf of the Texas State Bar's Unauthorized Practice of Law Committee against a New York-licensed attorney who has the audacity to practice immigration law in the Great State of Texas. I was intrigued because I have always been under the impression that federal practitioners need not be licensed in a state where they are advising solely on federal law issues - immigration in particular. This lawsuit is indeed interesting from the standpoint of both an immigration lawyer and a litigator, especially because there is no allegation of malpractice or wrong doing on the part of the defendant, attorney Dakshini Senanayake.
According to the article, Mr. Williamson argues that Texas state family and criminal law matters sometimes need to be taken into consideration in advising on immigration matters by taking the position that an immigration lawyer must know what effect Texas' family and criminal laws may have on their clients' immigration cases. I suggest that if this is indeed the case, then perhaps in order to succeed in their legal action for unauthorized practice of law, the UPLC would need to prove that an attorney against whom they bring such a lawsuit has indeed actually given this type of advice, rather than alleging that they "may" be called upon for this type of advice. Although I am a litigator and an immigration lawyer, I never give advice to clients in the areas of family law and criminal law, but refer clients with these types of questions to a qualified professional in those complex areas of practice.
In the article, Mr. Williamson is quoted as saying, "If a person has a problem with a lawyer they can go to the Bar [to complain]; with a person licensed elsewhere, there are no controls," Williamson says, "To the extent that she says she limits her practice to federal administrative law, there is no oversight to that either. And that is what the Unauthorized Practice of Law Committee is all about."
But in this instance, Ms. Senanayake is not an unlicensed lawyer, consultant or paralegal, she is a lawyer, licensed in the State of New York, thus her ticket to practice before the Federal Courts (albeit on a limited basis) and heretofore believed to be able to advise on strictly federal administrative law in any state.
Serious grievances can always be brought against an offending lawyer in the forum of licensure, in this case New York, and since complaints against attorneys are normally filed by mail, and require no personal appearance, it makes no difference whether the phone call made, or the envelope containing the complaint, travels to Austin, Texas or Albany, New York. Furthermore, if I am not mistaken, the EOIR is the sanctioning body for immigration practitioners, so Mr. Williamson's argument that attorneys unlicensed to practice state law in a particular state, who are practicing federal administrative law, are unregulated, may be double without merit.
Perhaps Ms. Senanayake is correct in her allegation that the motivation for the UPLC's suit against her is protecting the business of Texas lawyers from outside competition as she is quoted as stating in her federal petition, "The action is being prosecuted by an immigration lawyer in private practice in Houston, raising the specter of anti-competitive motives." But in reality, there does seem to be a compelling legal question here that has long needed a definitive answer. It appears only the Supreme Court of the United States of America may be able to determine this issue, but it is a sad commentary on a truly ripe legal issue that Ms. Senanayake has reportedly responded with a countersuit in which she alleges that the UPLC is violating her "civil rights", when all she really needed was to mount a vigorous and intelligent defense on the merits.
David D. Murray, Esq.
Newport Beach, CA
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