S.B. 1070: Some of the Byproduct

July 29, 2010 W. R. Eilers No Comments

So this morning I listened to a very angry Russell Pearce regarding the injunction issued by the Judge Bolton of the Federal District Court.  The blogosphere and your 24 hour news cycle is riddled with discussion and anaylsis of the law and the validity of the decision, so I don’t feel I would add anything unique to that discussion.  I have my opinions but since this is a matter that neither affects my life nor my practice, I am going to keep my mouth shut on the merits of the law under the big shadow of Supremacy and the Constitution.  What I wanted to write about, however, was the prospect of this law being signed off on by the Supreme Court, if this was an eventual end to the debate.  Specifically, I am interested on the effects of such a major shift in national immigration law on the practicing attorneys.  Upon first blush, the potential for radical change to a major sector of our legal brethren and how they do business is large.
It seems that the prospect of this becoming the law of the land (“this” being defined as the power of the state to enforce federal immigration laws in manners they best see fit), produces two interesting byproducts.  Firstly, what is this going to do to the cost of legal services for immigration matters?  Secondly, what are the implications of this law on unlicensed practice of law rules and regulations?

Currently, the immigration law field is fairly forumlaic.  Across the country, the federal law applies in its bureaucratic, administrative proceedings style of practice.  Most attorneys that I know here in Miami provide flat rate services for predictable procedures and matters.  Now it is not that application of state enforcement of immigration laws will change this aspect of practice, but what it will do is shift the focus of work.  With the potential for fifty state laws of enforcement requirements, ranging from standards of identification, standards of inspection to standards of penalties, the general diversity of multiple enforcement regimes presents a very harry and complex form of immigration representation.  Criminal defense attorneys and immigration attorneys will begin to see these lines blur.  Will these lead to a billable hour model for immigration attorneys?  Will this lead to increased costs for immigration legal services?  Will we see the development of a new kind of immigration attorney who’s trained in criminal defense?  Now I understand that the elements I describe already exist in most practices, but the difference is the quantity of these types of cases.  

Unlicensed Practice of Law
Now this may be a naive, knee jerk reaction to my morning radio listening. In fact, I can’t quite put my finger on the details of my concern.  The issue is that most attorneys practicing immigration law are only barred in one state.  Because of the federal content of the practice, there is no need to have any other jurisdictional approval.  However, there seems to be an interesting element of increased interpretation of state laws that enters the practice.  If a state is eager enough to  tackle immigration issues within its borders with such vigor, including more expansive enforcement and prosecution for facilitators, what is to stop them for seeking out attorneys for unlicensed practice of law?

As I said, this is just a little brain spill from the commute.  It will be a long travel before we see any sort of resolve from this case.  In fact, why might even see actual legislation by the time the Supreme Court hears it.  That being said, I think it is a curious case for many reasons.  Behind all the rhetoric and silliness that is apparently news and political discourse, there are actual, real practical, implications of a law like this.  This is not to quietly tuck away the even more monumental potential for the show down of Constitutional law that could have implications way beyond immigration.  I just wanted to take pause and remind everyone that in the midst of firestorms, protests and flamboyant legislation are the actual mechanics that effect those intended to be covered by laws and those that are under oath to protect the interests of those persons.

attorneys, contraversy, costs, immigration, rants, SB 1070, state bar, UPL

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