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On Balance

Ethics Watch: Alien Status and Bar Admission

By | Feb.24.14 | Daily Dispatch, Ethics, Law Practice, Professionalism

On Balance

What if you had completed all of the requirements to become an attorney admitted to practice law but, despite your best efforts to rectify the situation, were in the United States without a valid visa? That is exactly the question the Supreme Court of California took up recently in a first-of-its-kind case, In re Sergio C. Garcia On Admission. And its ramifications could be far-reaching for lawyers across the country.

All States Require Compliance With the Law to Be an Attorney

Every state has some form of moral character evaluation for prospective attorneys, and one facet of this evaluation is basic compliance with the law. While each state handles violations of law slightly differently, some things are outright bars to admission (criminal convictions for fraud or forgery). Other violations have to be explained and may be waived depending on circumstances (driving under the influence convictions, for example).

The question raised by lawyers like Sergio Garcia is what state bars should do for applicants who have, by their mere presence in the U.S., lived in contravention of the law. The states are not entirely free to view an applicant’s immigration status as they choose: 8 U.S.C. Section 1621 generally prohibits immigrants not lawfully present in the U.S. from obtaining professional licenses unless the state has enacted a law affirmatively allowing such an immigrant to obtain the license.

California’s Approach

California is often one of the first states to act on issues, and this was no exception.

Effective January 1, 2014, California’s Business & Professions Code Section 6064, which authorizes the State Bar to admit attorneys who meet all requirements for admission, explicitly allows the State Bar to admit lawyers not lawfully present in the U.S. In light of this legislation, California’s Supreme Court held in Mr. Garcia’s case that there was no federal impediment to his admission to practice.

Violating Immigration Law Is Not Moral Turpitude, Per Se

The court was not done analyzing Mr. Garcia’s case, however, in light of the fact that he had lived for many years in violation of U.S. immigration law. It held:

“We conclude the fact that an undocumented immigrant is present in the United States without lawful authorization does not itself involve moral turpitude or demonstrate moral unfitness so as to justify exclusion from the State Bar, or prevent the individual from taking an oath promising faithfully to discharge the duty to support the Constitution and laws of the United States and California.”

This lack of a “per se” determination of moral turpitude for violating immigration laws will likely be pointed to and argued in many cases involving other violations of law as well.

A New Candidate Pool

The significance of this ruling for the legal profession is that it opens up an entirely new candidate pool for law schools and bar admission — one previously barred. With that and the high cost of attending law school, aspiring lawyers not lawfully present in the U.S. would be unlikely to pursue a J.D. here. In light of Garcia, however, the tide may shift to open up this pool of potential applicants.

This pool could well be quite large, but these lawyers will enter the profession at a huge disadvantage: For the most part, they cannot be employed. In addressing this very issue, the court said that complexities surrounding employment of attorneys not legally present in the U.S., including childhood arrivals, should not be the basis for resolving the question of whether to admit an attorney to practice in the first place. Upon admission, all attorneys have to contend with what legal work they may ethically take on, be it from a competence or ability standpoint or a legal authorization to work standpoint. Plus, as federal law evolves on this question, it should not directly impact the admissions process.

So, the evolution of immigration reform will directly affect these new attorneys.

Not Everyone Will Qualify

It is important to note that Garcia was first brought to the States as a toddler, departed for much of his teenage years, and was brought back by his parents before his 18th birthday. Upon coming of age, he sought to legalize his immigration status, but he has been waiting 19 years for the U.S. government to issue his visa. His good faith efforts to legalize his status and overall demonstration of good moral character aided the approval of his application for admission. Like many individuals not lawfully present in the U.S., he did have an incident in his past where he was untruthful about his status for employment purposes, but the incident was long ago, not repeated, not actually remembered by him, and sufficiently explained in his dealings with the California State Bar. Most likely others in his shoes will have lengthier lists of untruthful dealings that would scuttle their attempts to establish good moral character.

Uncharted Territory Ahead

The full impact of Garcia will not be seen for years, of course, as it trickles through the population of California and unlawful immigrants begin to work toward law degrees — and as it spreads to other states that may take similar action. Since federal immigration reform is a big issue in Washington, DC, we may see federal enactments that will drastically impact the legal field as well. Garcia, though, makes such wide-reaching reform unnecessary to transforming the legal profession.

Megan Zavieh focuses her practice exclusively on attorney ethics, providing limited scope representation to attorneys facing state bar disciplinary action, and providing guidance to practicing attorneys on questions of legal ethics. She has been representing attorneys facing disciplinary action before the California State Bar since 2009 and is admitted to practice in California, New York and New Jersey, as well as in Federal District Court and the U.S. Supreme Court. She blogs at California State Bar Defense and is a contributor at Lawyerist.com.

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