The California legislature is expected to soon vote on AB 1159, a bill designed to help protect foreign nationals from fraud or errors by immigration attorneys and immigration consultants. As an attorney who has seen the damage done by poor (or fraudulent) immigration attorneys and consultants, this is an admirable goal. This bill, however, will not help the problem.

Note- As of August 9, 2013 AB 1159 is being revised.

One concern about AB 1159 is that it is hard to know exactly what the law will contain. The last “official” version amended in the California legislature is available here. Given nearly universal opposition from immigration advocates, the State Bar and Assemblywoman Lorena Gonzalez (the bill’s author) sought additional input, and has indicated that a revised version will be introduced. Despite still opposing the bill, I must acknowledge it is less problematic after the revisions.

The most recent version of the bill available to the public is available here, but there are discussions of further revisions. Given the ongoing changes, blog and news descriptions of the bill will likely differ depending on when they were written. This blog’s summary is based on a version released August 9, 2013, and I intend to provide updates as revisions continue.

Brief summary of AB 1159

Generally, AB 1159 creates several new requirements for immigration attorneys who do work related to the anticipated comprehensive immigration reform. These requirements include additional steps for fee contracts, handling of client money, and updating clients regarding the status of their case. Attorneys must also either post a bond, or meet certain liability insurance requirements. Finally, they must send a letter every year to the state bar certifying their compliance with these provisions.

In addition, this bill has two significant financial aspects. First, attorneys who fail to comply may be liable for up to $1,000 a day they are not in compliance. Second, they may be charged to cover the costs of administering the program.

Attorney fraud should be stopped- which is why it’s already illegal.

According to a factsheet from Assemblywoman Gonzalez, AB 1159 “is intended to protect vulnerable Californians who believe they may be able to seek protection as a result of pending federal immigration reform proposals, but, instead, are already the targets of fraudulent schemes”.

Again, preventing fraud is important. Notably, however, attorneys who commit fraud are subject to fines, disbarment or jail under the current law. It remains unclear why attorneys inclined to commit fraud regarding immigration reform would do so while aware of these potential penalties, but deterred by the new measures.

Therefore, while preventing immigration fraud is important, this bill is not necessary to achieve that end.

$1000 a day liability for cases that may take months or even more than a year.

Assuming there is immigration reform, no one knows how long it will take applications for status to be adjudicated. Currently, applications for residency or citizenship can take easily more than six months, and in some case over a year.

AB 1159 contains a number of provisions regarding retainer agreements, handling of money, and updating clients most of which are generally part of good practice if not existing requirements for attorneys. Many of them, however, are not so vital that an attorney could be considered fraudulent if they are not followed. Currently, attorneys who fail to take some of these measures may face penalties, but they are not severe if there is no fraudulent intent or harm to the client. For example, errors in fee contracts (or a failure to do a contract), will often result in financial disputes being decided in favor of the client, but still maintaining consideration of the value of the work done.

In contrast, AB 1159 provides for fines of up to $1000 a day for each day of violation. Read literally, this would mean that a mistake on a fee contract for an application which takes a year to be prepared and adjudicated could result in a $365,000 fine.

To be fair, the law does require the fine levied include consideration of facts such as the nature of the offense, willfulness of the violation, and the attorney’s financial situation. Nonetheless, a fine for even a fraction of the maximum could be ruinous.

If it is more expensive for attorneys, it will be more expensive for clients

The fine provisions alone will likely make immigration reform cases more expensive for attorneys, not to mention the potential adjustments which need to be made to liability insurance premiums. Additionally, however, attorneys who take immigration reform cases may also be paid fees to cover the costs of running the bar’s program. The statute does not specify how much this fee would be.

As the costs for immigration reform cases go up for attorneys, they will have no choice but to factor them into their legal fees. Therefore, this bill will not only harm immigration attorneys, but consumers as well.

For those who cannot afford the fees of attorneys who follow the new provision, many will therefore be compelled to not get assistance, or seek assistance from immigration consultants- non-attorneys who are only permitted to fill out forms without providing any sort of legal advice. Even immigration consultants, however will be subject to additional requirements, presumably resulting in increased fees.

Despite the nominal sanctioning of immigration consultants by AB 1159 and other provisions, it is still nearly impossible to adequately prepare any sort of an immigration application without providing legal advice. Those consultants who follow the law and do not give legal advice will not be able to explain the risks associated with any application, provide any detailed analysis of eligibility or otherwise truly explain to consumers what they are filing for and why. Pushing would-be applicants from attorneys to those who by law can provide much less service does not benefit consumers.

Undoubtedly, moreover, some of the attorneys or consultants who are undeterred by the current laws against fraud, will remain practicing despite the new rules. Unburdened by the costs of the new program they will likely offer lower fees- making them potentially a more attractive option to the very same “vulnerable population” the bill seeks to protect.

Finally, I should also add that my opposition to this bill even though I would likely would not be subject to much of it. As long as they carry the requisite liability insurance, specialists in immigration and nationality law certified by the State Bar of California are exempt from many of the provisions of AB 1159. Angela Bean and I are both are certified specialists.

Nonetheless, I believe that this bill- even if it is well-intentioned- will not only harm many of colleagues, but again, the very group it seeks to protect. Moreover, it unfairly singles out attorneys in one area of law, and especially those handling certain types of applications. While fighting fraud is indeed a worthy aim, this bill misses the mark.

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