Return To Sender; Address Unknown
by
Craig D. Klausing, Senior Assistant Director
Minnesota Office of Lawyers Professional Responsibility
Reprinted from Minnesota Lawyer (August 2,
2004)
It has become almost cliché to note that we live in a
mobile society. As individuals we may relocate
across town or across country. Lawyers
are among the mobile, changing not just their residences, but also the location
of their offices and the firms with which they practice.
This professional mobility, however, if not combined with
proper notification to the tribunals in which the lawyer appears can result in
legal problems for the client and ethical difficulties for the lawyer. While this is an issue that affects all
lawyers, it is one that is most acutely felt by lawyers practicing immigration
law. The experiences of these lawyers
provide a cautionary tale to all lawyers in our mobile society.
Notifying
tribunals
There are two reasons why the problem of lawyers not
informing tribunals of their change of address disproportionately affects
lawyers practicing immigration law.
First, immigration matters can be under consideration for months, if not
years. An appeal to the Board of
Immigration Appeals (BIA) may be under advisement for more than a year before a
decision is issued. During that time
the lawyer may have changed firms or offices.
Second, in order to sustain a claim of ineffective assistance
of counsel, the alien is required to file an ethics complaint with the
appropriate disciplinary authority or explain the absence of such a
filing. See Matter of Lozado, 19
I&N Dec. 637 (BIA 1988). This
requirement all but guarantees that if the lawyer fails to diligently pursue an
immigration matter, resulting in prejudice to the client’s case, an ethics
complaint will be lodged.
An example of what can happen when a lawyer fails to notify
the tribunal of a change of address is illustrated by a recent ethics
complaint. The lawyer represented the
client in a request for asylum. After
the immigration judge denied the client’s application, the lawyer filed the
necessary paperwork to appeal the judge’s decision. The BIA did not issue its order closing the client’s case until
18 months later when it sent notice of its decision to the lawyer at the
address she had used when filing the appeal.
In the interim, however, the lawyer had relocated her
office. She did not receive the BIA’s
decision and was not able to advise her client of the decision. The client missed the 30-day period in which
to petition for appeal of the BIA’s decision to the 8th Circuit Court of
Appeals or seek other relief. The
client subsequently retained new counsel who filed an appeal with the BIA
(citing ineffective assistance of counsel) and also filed an ethics
complaint.
The lawyer was investigated for failing to exercise
reasonable diligence by not notifying the BIA tribunal in her client’s pending
appeal of her address change.
In response to the ethics complaint, the lawyer argued that
in a second unrelated client matter before the same tribunal she had informed
the BIA of her new address. However,
that notice made no reference to the pending appeal and, in fact, was simply a
notice of appearance provided only in the context of the second client’s
case. The information about the
lawyer’s new address never made it to the first client’s BIA file.
Another matter involved a
lawyer who, two years after she filed an appeal with the BIA, left the firm
where she had been practicing. At the
time of her departure the lawyer believed her client had retained new
counsel. However, the lawyer never
filed a substitution of counsel with the BIA (which had still not ruled on her
client’s appeal) and never provided the BIA with a new address.
Six months after she left
the firm the BIA issued its determination, denying the client’s appeal. The BIA then sent a copy of its decision to
the lawyer’s now former law firm. By
the time the firm determined what the letter related to, and forwarded it on to
the client, the time for the client to appeal to the federal courts had lapsed.
In order to avoid these problems, a lawyer should file an
address change notice or a substitution of counsel with every court in which
the lawyer has a matter pending, identifying all representations before that
court. In the above cases that meant,
at a minimum, writing to the BIA and listing each case in which the lawyer was
appearing and noting the lawyer’s new address.
An even better solution would have been for the lawyers to
write separately on each case so that there would be documentation for each
file identifying the lawyer’s new address.
Clearly what the lawyer could not do was move while there was a matter
pending with the BIA, and not provide notice of her new office address.
To protect the client’s interests the lawyer must act
diligently. To act diligently the
lawyer must be able to receive information from the courts affecting the
client’s interests. In our mobile
society that means the lawyer must be conscientious about notifying the courts
of changes in office locations or firms.
To fail to do so is to risk prejudicing the client’s interests and incurring
professional discipline.