DUAL REPRESENTATION, VIOLATIONS OF ETHICS CODES, AND $278,763.20 MALPRACTICE AWARDS:

Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny?

PETER D. WILLIAMSON, Houston KAY ADAMS* Williamson & Chavez

State Bar of Texas IMMIGRATION LAW 2004 May 6-7, 2004 Houston

CHAPTER 4

Curriculum Vitae Peter D. Williamson

Univ. of Illinois, 1966, B.A.

Univ. of Texas, 1969, J.D.

Private practice of law, Houston, Texas, 1971-present.

Board certified, Texas Board of Legal Specialization, Immigration and Nationality Law (1979 - present). Maintained board certification in Civil Appellate Law 1987-1997.

Member, College of the State Bar of Texas

Active in American Immigration Lawyers Association, serving as chair of the Texas chapter, on the national board of governors, and on the national executive committee. President, 1994 - 1995. The American Immigration Lawyers Association has a membership of over 8,000 attorneys who practice in this field of law.

Biography appears in Who's Who in America and Who’s Who in American Law. Maintains av rating with Martindale-Hubbell law directory.

Member, State Bar of Texas. Licensed to practice before the U.S. District Courts, Southern and Western Districts of Texas; U.S. Courts of Appeals for the 4th, 5th, 6th, 8th, 9th, 10th, 11th and D.C. Circuits, and the U.S. Supreme Court. Counsel in about twenty appellate cases with reported decisions.

Has appeared as a speaker or panelist in immigration-law topics at approximately 20 seminars in the past 10 years, in Albuquerque, Atlanta, Austin, Boston, Charlotte, Chicago, Colorado Springs, Dallas, Denver, Detroit, Edinburg, El Paso, Houston, Los Angeles, Manila, Memphis, Miami, Nashville, New Orleans, New York, Oklahoma City, Orlando, Philadelphia, Phoenix, San Antonio, San Francisco, Santa Fe, Santo Domingo, Seattle, Tyler, Washington, etc.

Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

TABLE OF CONTENTS

I. INTRODUCTION...... 1 A. Who Is The Client? ...... 1 B. Initial Discussion of dePape Case...... 2 C. Drafting An Thorough Engagement Letter (Exhibit A)...... 2 D. Texas Disciplinary Rule of Professional Conduct 1.06 ...... 3 E. Section 81.079(b) Brochures ...... 4 F. Handling Dual Representation Cases...... 4 G. Texas Disciplinary Rule of Professional Conduct 1.07 ...... 5 H. Recent Changes to Grievance Process in Texas – Interview with Dawn Miller...... 5 I. Ethical Dilemmas Present in Labor Certification Process ...... 6

II. RECENT CASES – ATTORNEYS LIABLE FOR MISCONDUCT IN DUAL REPRESENTATION CASES .. 7 A. Gregory dePape v. Trinity Health Systems, Inc. & Trimark Physicians Group and Blumenfeld, Kaplan, & Sandweiss ...... 7 B. Jose Luis Vega Gonzalez v. State of Oregon...... 9 C. Madeline Close v. Computec International Resources, Inc...... 11 D. Ranganath Saraswati v. Michael J. Wildes...... 11 E. U.S. v. Lew...... 12 F. Operation Strong Tree...... 15

III. TEXAS CASES: ATTORNEY LIABILITY...... 16 A. Lara v. Trominski...... 16 B. Matter of Leslie Hazlett Thacker...... 18

IV. CONCLUSION...... 23

EXHIBIT A - Grievance Brochures - Notice to Clients in English & Spanish ...... 25

EXHIBIT B - Gregory dePape v. Trinity Health Systems ...... 27

EXHIBIT C - Proposed Statement of Understanding ...... 51

EXHIBIT D - Madeline Close Case ...... 53

EXHIBIT E - Saraswati v. Wildes Case...... 59

EXHIBIT F - Proposed Statement of Accuracy...... 61

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Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

DUAL REPRESENTATION, interest, essentially defaults into creating a conflict of VIOLATIONS OF ETHICS CODES, interest for the immigration lawyer. The immigration attorney has to constantly manage conflict of interest AND $278,763.20 MALPRACTICE issues due to the “built-in” dual representation issue AWARDS: present in the everyday practice of immigration law. In Do Immigration Attorneys Practice Law addition, the attorney must consider all the possible additional affected parties when facilitating an Under a Higher Level of Scrutiny? immigration related transaction. Finally, the

1 immigration attorney may be expected to know all of “There are no solutions, only defenses.” the parties who could be affected by an immigration matter or transaction. But, can the immigration I. INTRODUCTION attorney truly know all of the involved and affected When it comes to the recent changes in parties, much less act in the best interest of each one? immigration law, most immigration attorneys know to expect the unexpected. Nowhere is this more obvious A. Who Is The Client? than in immigration cases where new laws are In considering this question, the immigration changing the landscape, causing immigration to attorney should place the primary duty to herself, her constantly adapt to the new landscape. Courts are also law license, her family, and her practice. Like molding the new landscape. Recent decisions have Southwest Airlines flight attendants explain, “if you shown a trend holding immigration attorney(s) liable are seated next to as small child, or someone who acts for negligence, emotional distress, ineffective like one, place the mask over your nose and mouth assistance of counsel, and other malpractice claims, first, and then place the mask on the child.” How can particularly in cases where dual representation became the immigration attorney effectively help anyone else an issue. The discussions and holdings in these cases unless she takes steps to help herself first? The author point to a trend of expecting attorneys to practice a of How to Start and Build a Law Practice, Jay high standard of care for all affected parties, regardless Foonberg, suggests that an attorney should place a of who was the attorney’s client. The complex issues picture of her family in a highly visible place in her surrounding dual representation cases, along with the work area to remind herself to act in her best interest, accompanying conflict of interest problems, arise once and thus act in the best interest of her clients.5 This again, and for one immigration law firm, with a hefty technique may help attorneys who generally want to be price tag! so helpful that they inadvertently “throw themselves on The nature of immigration law itself creates and the sword” and end up helping no one in the process. complicates matters involving dual representation, After decisively placing her own behavior at a high conflicts of interest, and “the duty of lawyers to standard, the attorney should consider the obvious zealously represent their clients and the limitations of parties, the client(s). In addition to these “obvious this duty, and lawyers' responsibilities to both the 2 clients” though, the attorney should consider the government and the public.” With this in mind, innocent family members of these individuals because immigration attorneys must balance these loyalties; any advice given to the clients will affect their spouses however, immigration attorneys don’t generally have a 3 and children. If the attorney’s client is a business, she clear direction on how or where to draw the lines. should take note of the duty owed to the business and This article discusses recent cases with discussions and all employees as well. In considering the interests of holdings that immigration attorneys should consider to these innocent parties, the attorney should also think make appropriate alterations to everyday practice. The about the rest of the affected parties that the attorney courts in these cases heavily discussed how the does not know anything about, such as the “unknown behavior of attorneys caused the consequences that the shady characters” in John Grisham’s novel, The King affected individuals suffered. The courts placed a high of Torts, where the interests of the individuals value on whether the affected individuals had enough represented within a class action lawsuit began to information relating to the immigration issue to make 6 4 conflict. The attorney must consider what effect any an informed decision. In essence, these courts have advice she gives today may have on the futures of the sent immigration attorneys a clear message - zealously obvious client(s) and of the innocent parties indirectly represent the client, however, maintain a high degree involved. Can the attorney foretell whether the of duty, disclosure, loyalty, honesty, and responsibility interests of these innocent parties may conflict in the to all the other individuals and parties that could be future? If so, should she take remedial steps now, or at affected by the immigration matter. This high degree least disclose her thoughts to the obvious clients? of duty owed to all affected parties, not to mention the Next, the prudent attorney will consider the interests federal government, state governments, and public (and laws) of the federal government, state 1 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4 governments, public interest, and other public policy had previously used, six times, to bring Canadian ramifications that could come into play. To further doctors into the United States. This technique, complicate matters, the attorney should consider however, involved having a contact at the Buffalo, parties, individuals, or interests that are currently New York border crossing location that facilitated the unknown to the attorney.7 Even the “American movement of the immigrating party into the United Dream” appears to have a duty owed to it, as the court States. However, on the day Dr. dePape and his in the dePape v. Trinity Health Systems8 case seems to fiancée attempted to cross the border, Blumenfeld’s suggest. contact was not at work, blowing the “cover” off Blumenfeld’s carefully laid plans. B. Initial Discussion of dePape Case It is important to note that Blumenfeld was not In dePape v. Trinity Health Systems, Inc. and involved in the employment agreement part of this Blumenfeld, Kaplan, & Sandweiss9, the court found transaction. The law firm was brought in to handle the that Blumenfeld, Trinity’s law firm, had breached the immigration portion of the overall employment duty of care owed to a client under Iowa law.10 promises already agreed to in the employment Blumenfeld was ordered to pay $278,763.20 in agreement by Trinity Health Systems and Dr. dePape. damages to the immigrating employee for lost wages Had Blumenfeld been involved in the employment and emotional distress due to the loss of his “American negotiation from the beginning, the law firm may have dream.” The Court stressed “Blumenfeld was been in a better position to represent the parties in a extraordinarily negligent in failing to inform and more balanced manner. Blumenfeld had no initial communicate with Dr. dePape concerning his contact nor did the law firm develop a rapport with Dr. immigration….”11 The law firm, having been enjoined dePape, since Trinity Health Systems hired the law to the lawsuit by Trinity Health Systems, attempted to firm to handle the immigration aspects of the defend itself by suggesting that they depended on employment agreement. Considering Blumenfeld’s Trinity Health, the employer, to communicate with the actions as described in the case, it seems that immigrating employee.12 However, this argument fell Blumenfeld did not consider Dr. dePape as a client. It short because the engagement letter included Dr. may be possible that Blumenfeld mindlessly added Dr. dePape as a client and there was no evidence dePape as a client in the engagement letter and, as time suggesting that Blumenfeld and the employer agreed passed, simply dealt with the obvious client, Trinity that the employer was to communicate all information Health Systems. One can confidently state that most to Dr. dePape. The lack of communication eventually practitioners do not peruse each engagement letter led to signific ant problems for the immigrating prior to each contact with a client. Regardless, employee, leading to the award of $278,763.20 to Dr. Blumenfeld dropped the ball, and was held accountable dePape’s for his lost income and emotional distress. for dropping Dr. dePape’s dreams for a bright future The court quoted Clark v. Estate of Rice13, “Under the along with it. tort theory of negligence, there is no general duty of care to avoid causing emotional harm to another. C. Drafting An Thorough Engagement Letter However, where the parties assume a relationship that (Exhibit A) is contractual in nature and deals with services or acts How should have Blumenfeld drafted the that involve deep emotional responses in the event of a engagement letter to address (1) the dual representation breach, [Iowa courts] recognize a duty of care to issue, (2) the expectation of the duty owed to each protect against emotional distress.”14 The court placed client and to the transaction itself, (3) an explanation significant weight on the immigrating employee’s “lost as to the duties owed to the federal government, and dreams”, financial loss, and embarrassment, which (4) the portions of the transaction that were out of resulted in the $75,000 award for emotional distress.15 Blumenfeld’s control? A sample contract covering The law firm “mismanaged” a dual representation these issues is included in Exhibit A. issue, failed in its duties to the various individuals and In drafting a thorough engagement letter, how parties affected by the employment transaction, and should the attorney explain how she will manage was penalized for its lack of zealous representation to conflicts of interest as they arise? Richard Gump’s one of the two clients. In addition, the court mentioned article, I-9 Audits, Compliance, and Employer that Blumenfeld had engaged in a “sham transaction” Sanction Issues, explains the process and the and had been involved in misleading the United States parameters an employer must work within to properly federal government by submitting an application that verify employment eligibility of all its employees contained information that Blumenfeld knew was (hired after November 6, 1986).16 For example, Mr. untrue and misleading. But, from Blumenfeld’s point Gump’s article brings attention to the fine line between of view, Blumenfeld had an obligation to manage this verifying employee eligibility to work without employment transaction and used the same technique it violating the provisions of section 274B(6) of the 2 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

Immigration and Naturalization Act (INA).17 For D. Texas Disciplinary Rule of Professional example, if an employer asks for specific documents Conduct 1.06 from all potential employees, the employer, more The Texas Discip linary Rules of Professional likely than not, is following the intent of the provisions Conduct (Texas Disciplinary Rules) address conflicts properly.18 However, as soon as the employer asks for of interest involving dual representation of parties.27 additional or more documents from an employee, then The Texas Disciplinary Rule 1.06 basically suggests the employer is deemed to be violating section that attorneys should avoid representing two parties 274B(6).19 This reasoning is reached because the with interests that could become conflicting. 28 The request for additional documents is deemed made with Rule reads as follows: the purpose or intent to discriminate.20 In his article, Mr. Gump includes the United · Texas Disciplinary Rule 1.06(a) - A lawyer States v. Strano Farms case. Strano Farms had shall not represent opposing parties to the implemented a policy of requiring all non-citizen same litigation. 29 workers to show INS issued documents to prove · Texas Disciplinary Rule 1.06(b) - In other eligibility to work.21 This new policy came upon the situations and except to the extent permitted heels of an INS investigation that involved the hiring by paragraph (c), a lawyer shall not represent of undocumented workers and paperwork violations.22 a person if the representation of that person: The court held that because only alien workers were required to show the INS issued documents that Strano (1) Involves a substantially related matter in Farms had engaged in a pattern and practice of which that persons interests are discrimination.23 As Mr. Gump points out, in response materially and directly adverse to the to an investigation, Strano Farms implemented a interests of another client of the lawyer compliance policy to prevent future problems.24 or the lawyers firm; or However, the policy overreached the individual rights (2) Reasonably appears to be or become of alien workers and violated the discrimination adversely limited by the lawyers or law statute.25 firm's responsibilities to another client or As a practice pointer, Mr. Gump suggests the to a third person or by the lawyers or law following: firms own interests. 30

“Employers must be careful to treat all · Texas Disciplinary Rule 1.06(c) – A lawyer employees equally, including in the context may represent a client in the circumstances of the employment verification system. The described in (b) if: employer must be educated concerning the documents which may be presented for (1) The lawyer reasonably believes the employment verification purposes and the representation of each client will not be other nuances of the employment verification materially affected; and provisions....The intention of the (2) Each affected or potentially affected employment verification system was to be client consents to such representation easy for the employer. Now, the employer after full disclosure of the existence, may be responsible for knowing the different nature, implications, and possible 26 aspects of esoteric immigration issues.” adverse consequences of the common representation and the advantages Whose job is it to ensure that the employer stays out of involved, if any.31 trouble without causing individual’s the opportunity to work in this country? Mr. Gump’s observation shows · Texas Disciplinary Rule 1.06(d) - A lawyer how the dual representation issue in employment who has represented multiple parties in a matters is becoming a more complex problem for the matter shall not thereafter represent any of immigration attorney to manage. One can assume that such parties in a dispute among the parties Blumenfeld would likely agree. arising out of the matter, unless prior consent Blumenfeld handled the conflict of interest is obtained from all such parties to the situation that arose to its detriment under Iowa law. dispute. Texas offers some guidelines in the Texas Disciplinary · Texas Disciplinary Rule 1.06(e) - If a lawyer Rules of Professional Conduct to help the practitioner has accepted representation in violation of handle these situations. However, these rules do not this Rule, or if multiple representation reflect as an exceptional guideline for the immigration properly accepted becomes improper under attorney practicing in Texas. 3 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

this Rule, the lawyer shall promptly grievance process available to consumers.34 Exhibit B withdraw from one or more representations contains both brochures or you may visit the website to the extent necessary for any remaining itself by using the following links: representation not to be in violation of these Rules. For the English version: · Texas Disciplinary Rule 1.06(f) - If a lawyer http://www.texasbar.com/Template.cfm?Sect would be prohibited by this Rule from ion=Client_Assistance_and_Grievance&CO engaging in particular conduct, no other NTENTID=3364&TEMPLATE=/ContentMa lawyer while a member or associated with nagement/ContentDisplay.cfm that lawyer's firm may engage in that conduct. For the Spanish Version: http://www.texasbar.com/Template.cfm?Sect According to Elizabeth Williams, in her Family Law ion=Client_Assistance_and_Grievance&CO Practice Guide topic regarding Dual Representation, “It NTENTID=3366&TEMPLATE=/ContentMa is strongly recommended that the attorney advise a nagement/ContentDisplay.cfm prospective client who wishes him or her to represent both spouses of the pitfalls of joint representation, and This article will analyze various theories on properly that the attorney politely refuse to undertake it. handling dual representation cases. The first section Counsel should urge that the other spouse obtain his or will focus handling dual representation cases by her own attorney for all aspects of the dissolution analyzing the Texas Disciplinary Rules of Professional proceeding. To avoid even the appearance of dual Conduct and the Texas Rules of Disciplinary representation, counsel should adopt a policy of not Procedure. A brief explanation of the recent changes meeting with both spouses unless the other spouse is in the grievance and attorney disciplinary system is represented by counsel. If the other spouse is not included. The first section will continue by examining represented by counsel, communications should be the other rules immigration attorneys must be aware of, made in writing and a copy kept of all correspondence. including rules promulgated by the Immigration and If there must be in-person contact, such as a conference Naturalization Services (INS), Immigration and with an unrepresented spouse to discuss settlement or Naturalization Act (INA), the Department of Justice to sign an agreement, counsel is advised to tape record (DOJ), the Department of Labor (DOL), the Foreign the meeting if possible. All persons present should be Affairs Manual (FAM), federal and state courts, and told that the session is being tape recorded. finally, local state bar associations. The second section Alternatively, a secretary or paralegal might sit in on examines recent cases and holdings where attorneys the discussion and sign an affidavit indicating what fell short of their duties to their clie nts and other took place.”32 Are these suggestions really an option affected parties. for immigration attorneys? In immigration law, attorneys find a large F. Handling Dual Representation Cases percentage of their cases involve representing exactly The Texas Disciplinary Rules of Professional what Rule 1.06 seeks to avoid – the representation of Conduct address the difficulty in assessing whether a two parties with interests that could become conflicting conflict of interest arises in non-litigation situation. 35 at a future time. An immigration attorney’s client The attorney must assess whether he or she can include married couples, families, employers and properly represent each client, remain impartial and employees, rock ‘n roll bands – all parties that are quite fair, and determine whether there is potential for an like ly decide to split up and “begin a solo career.” Yet, adverse effect to either party.36 In addition, Rule 1.07 when these controversies develop, and they will, the allows the attorney to act as an intermediary for Texas Rules of Professional Conduct do not offer a multiple parties, as long as the attorney has the written conclusive solution for immigration attorneys to live consent from each party.37 If the attorney decides that by (neither do the Model Rules of Professional it is likely that each party will benefit from the dual Conduct). The Texas Rules of Disciplinary Procedure representation in non-litigation matters, then the offer unhappy clients various avenues to file grievance attorney is not barred from representing both partie s.38 complaints against their attorney. 33 However, a prudent attorney will take note of requirements and recent changes to the grievance E. Section 81.079(b) Brochures procedure in the Texas Rules of Disciplinary Section 81.079(b) of the Government Code of the Procedure.39 State Bar of Texas requires attorneys to place a brochure, in both English and Spanish, in their offices for consumers to have access to learn about the 4 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

G. Texas Disciplinary Rule of Professional lawyer while a member of or associated with Conduct 1.07 that lawyers firm may engage in that conduct. Texas Rules 1.07, Conflict of Interest: Intermediary, states the following: For example, section 81.079(b) of the Government Code of the State Bar of Texas, Public Notification and · Texas Disciplinary Rule 1.07(a) - A lawyer Information, requires “each attorney practicing law in shall not act as intermediary between clients this state shall provide notice to each of the attorney's unless: clients of the existence of a grievance process by (1) making complaint brochures prepared by the state bar (1) The lawyer consults with each client available at the attorney's place of business, (2) posting concerning the implications of the a sign prominently displayed in the attorney's place of common representation, including the business describing the process, (3) including the advantages and risks involved, and the information on a written contract for services with the effect on the attorney-client privileges, client, or (4) providing the information in a bill for and obtains each client’s written consent services to the client.” 40 to the common representation; (2) The lawyer reasonably believes that the H. Recent Changes to Grievance Process in Texas matter can be resolved without the – Interview with Dawn Miller necessity of contested litigation on terms Additionally, effective January 1, 2004, the Texas compatible with the clients best Rules of Disciplinary Procedure underwent changes interests, that each client will be able to relating to the grievance and attorney disciplinary make adequately informed decisions in system. According to an interview with Dawn Miller, the matter and that there is little risk of State Bar of Texas Chief Disciplinary Counsel, the material prejudice to the interests of any most significant change affecting attorneys involves of the clients if the contemplated the elimination of the investigatory hearing process.41 resolution is unsuccessful; and Instead, the investigatory hearing process is being (3) The lawyer reasonably believes that the replaced by a newly-created dismissal docket, known common representation can be as the “summary disposition docket.”42 Ms. Miller undertaken impartially and without states that the change was made to eliminate the improper effect on other responsibilities previous two-level system because it was seen as the lawyer has to any of the clients. cumbersome and had many opportunities to delay resolutio ns of the cases.43 · Texas Disciplinary Rule 1.07(b) - While To further explain some of the changes, Ms. acting as intermediary, the lawyer shall Miller’s interview continues, “…the summary consult with each client concerning the disposition docket allows the Chief Disciplinary decision to be made and the considerations Counsel to present a complaint to a panel of the relevant in making them, so that each client grievance committee to explain why the matter should can make adequately informed decisions. be dismissed, outside of the presence of the respondent · Texas Disciplinary Rule 1.07(c) - A lawyer attorney and the complainant. The panel’s sole shall withdraw as intermediary if any of the function is to decide whether or not to dismiss the clients so requests, or if any of the conditions complaint. If the complaint is not dismissed, then the stated in paragraph (a) is no longer satisfied. respondent attorney will receive a description of the Upon withdrawal, the lawyer shall not factual allegations and rule violations and has the continue to represent any of the clients in the option to select either an evidentiary panel or a district matter that was the subject of the court proceeding. The summary disposition docket intermediation. allows the complaint to go directly to the panel, rather · Texas Disciplinary Rule 1.07(d) - Within the than through the previous pr ocess of going directly to meaning of this Rule, a lawyer acts as the investigatory panel hearing, [where] investigations intermediary if the lawyer represents two or frequently concluded that, while there might have been more parties with potentially conflicting misconduct alleged, no evidence of misconduct was interests. unearthed. From the respondent's and frequently the · Texas Disciplinary Rule 1.07(e) - If a lawyer panel's standpoint, an investigatory hearing under those would be prohibited by this Rule from circumstances seemed unnecessary.” engaging in particular conduct, no other “Because the summary disposition panel exists, the respondent's ability to appeal the initial classification of a grievance as a complaint was 5 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4 eliminated. The Sunset Commission44 determined that subject to criminal sanctions.52 IRCA requires the INS the respondent's classification appeal was unnecessary, to screen applications for evidence of any IRCA since a full response to the complaint accomplishes the violations.53 Therefore, if an employer previously same thing — dismissal in appropriate cases. Also, the hired illegal aliens or if an illegal alien performed work complainant's ability to appeal an evidentiary panel's in the United States, the labor certification process decision was eliminated — which brings that nearly becomes an admission of guilt.54 The employer procedure in line with the district court procedure, in and the illegal alien may be investigated, fined, which a complainant has never had an independent removed, or exposed to liability in other ways.55 So, right of appeal. All dismissed cases are referred to the the immigration attorney must be careful in following State Bar's mechanism for voluntary mediation and every aspect of IRCA, and must also be aware of the dispute resolution, the Client Attorney Assistance increase in the potential for serious conflicts of interest Program (CAAP). The only exceptions are for to develop. Should the immigration attorney be dismissals because the named respondent is deceased, representing both parties, it may become impossible to disbarred, has already resigned, or has never held a represent one party without harming the other, thus, Texas law license. The Sunset Commission recognized violating various ethics rules, namely Texas that the CAAP had proven beneficial at the front end of Disciplinary Rule 1.06, due to the dual representation the attorney disciplinary system in facilitating relationship between the parties. For immigration resolutions between clients and lawyers in situations attorneys working in employment matters, the where the complaint that had not risen to a level of enactment of IRCA has increased the potential for professional misconduct. The hope was that CAAP conflicts of interest. might also benefit complainants and respondents at the For example, if the alien initially retains the back end of the process.”45 attorney, the attorney may have an ethical obligation to Ms. Miller concludes her interview by suggesting inform the employer of the potential IRCA that the changes to the disciplinary procedure “are investigations and the accompanying liability should intended to streamline the process, to afford lawyers the employer agree to file a labor certification ample opportunity to defend against the allegations, application on behalf of the alien.56 However, won’t and to provide complainants the opportunity to have communicating this information to the employer their complaints investigated and appropriately possibly harm the alien’s opportunity for employment addressed.”46 and permanent status in the United States, which was the reason the attorney was retained in the first place? I. Ethical Dilemmas Present in Labor Even though the attorney could attempt to represent Certification Process both parties to the best of her ability, any discussion Practitioners and scholars have also suggested regarding IRCA, and its potentia l liabilities, could theories for handlin g dual representation cases. For adversely affect the alien’s ability to convince the example, author Panteha Abdollahi examined various employer to hire her.57 If the attorney takes this risk, ethical dilemmas present in the labor certification and it results in this adverse effect, the alien’s process as an example of the various professional “American dream” may be forever lost. As the holding responsibility issues that permeate throughout the in the dePape case suggests, an alien’s dream can carry entire field of immigration law.47 Ms. Abdollahi a lot of weight in helping the court determine the injury opines that the Model Rules of Professional Conduct caused to the alien. In addition, as soon as a are inapplicable to the practice of immigration law government investigation begins, won’t a conflict of because the rules are simply not comprehensive interest for the attorney immediately occur? Is the enough in its ethical guidelines.48 In order for the attorney’s client the alien who initially retained her? immigration attorney to gain a firm grasp on ethical The INS has questioned the appropriateness of boundaries, the attorney must also keep abreast of any dual representation in IRCA investigation cases. For changes the INA, DOJ, DOL, FAM, or federal courts example, an internal memorandum was sent to all may place in effect.49 For immigration attorneys employees in the INS Baltimore District Office. The working labor certification cases, the risk for conflicts memorandum asked INS employees to report IRCA of interest is rampant. investigation cases that had the same attorney The enactment of the Immigration Reform and representing both parties.58 An immigration attorney Control Act (IRCA) has raised a very serious potential could risk being disbarred or having sanctions placed conflict between employers and aliens.50 IRCA makes against her should any misconduct be alleged.59 it unlawful for an employer to employ aliens not Therefore, an attorney may decide to not explain the authorized to work in the United States and initiates ramifications of IRCA to employers and, because the serious penalties for violations.51 If an employer shows ethical guidelines are unclear, the attorney may not be a pattern of hiring unauthorized aliens, the employer is any worse off. Should a conflict of interest arise, 6 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4 should the attorney withdraw, attempt to represent both II. RECENT CASES – ATTORNEYS LIABLE parties as long as she has their written consent, or FOR MISCONDUCT IN DUAL represent the person who initially retained her – the REPRESENTATION CASES client? There is no clear direction, however, if an The following four cases have reached IRCA investigation begins, then the attorney should conclusions that immigration attorneys should be withdraw from dual representation to avoid violating aware of. Not only can mistakes made by the attorneys Texas Disciplinary Rule 1.07 or Model Rule 1.7.60 result in devastating, life altering for the client and The INS has attempted to act on its suspension other affected or interested parties, but they can prove and disbarment power, but has been ineffective in expensive for the attorney and law firm as well. reaching its goals.61 Not only is the INS bogged down by the number of applications it must manage, but the A. Gregory dePape v. Trinity Health Systems, Inc. agency has also found that aliens are generally & Trimark Physicians Group and Blumenfeld, unwilling to file ethical grievances for attorney Kaplan, & Sandweiss70 misconduct.62 Obviously, if the alien is removed due Dr. dePape, a Canadian physician, sought for to the attorney’s negligence, then the alien’s lack of breach of contract against an American physician’s resources lowers the ability for the alien to file the group (Trimark, wholly owned by Trinity) and its law grievance.63 The INA and DOJ also have the authority firm (Blumenfeld) for a failed attempt to immigrate to to impose ethical sanctions against attorneys who the United States to work for the physician’s group. 71 “knowingly or with reckless disregard make a false The facts of the case are logical. The Canadian statement of material fact or willfully mislead, physician, dePape, signed a five-year employment misinform, or deceive any immigration authority agreement with Trinity Health Systems on March 9, concerning any material or relevant matter in a case.”64 1999. 72 The parties agreed to an annual income of The Foreign Affairs Manual requires knowledge of $130,000 U.S. for Year 1; $140,000 U.S. for Year 2, fraud or misrepresentation on behalf of the bad actor; and a percentage of dePape’s net production for the however, FAM’s writings define fraud or remaining three years. Trimark agreed to build a new misrepresentation when the alien is the bad actor. office for dePape with a guaranteed interest free loan When the fraud or misrepresentation is willfully and of $100,000 U.S. maximum. Trimark also agreed to knowingly made by the alien, it is grounds for pay dePape’s school debts, provide him life insurance ineligibility under INA §212(a)(6)(C)(i).65 In the case benefits, and agreed to pay dePape’s professional dues of In re Leifer, the immigration attorney was disbarred and licensure expenses.73 In return, dePape was to for falsifying the nature of the employment of the immigrate and work as a family physician, treating applicant. However, the court’s holding was not useful patients, in Fort Dodge, Iowa. Even though it was not to other attorneys because the court did not specify spelled out in the contract, Trimark agreed to pay for what statements were made by the attorney, which the immigration costs associated with dePape’s ones were false, nor why the statements were deemed immigration into the United States.74 Trimark found false.66 Finally, because immigration law is entirely that dePape was a great fit for their group and hoped to federal, many immigration attorneys practice develop a long-term relationship with dePape. DePape immigration law away from their principal place of felt the same way and began preparations to immigrate business or licensing state.67 This creates a to the Iowa to work and establish a permanent life “jurisdictional gap” that results in difficulty in there. At the point the employment agreement was disciplining immigration attorneys because state bars signed, Trimark retained the Blumenfeld law firm, are usually unaware of misconduct by immigration which was recommended to Trimark as a well attorneys.68 respected, experienced, and competent law firm with The fact remains that the attorney has no way of matters relating to this type of employment gauging whether her judgment is well-reasoned. The immigration process.75 Trimark retained Blumenfeld Texas Disciplinary Rules and the Model Rules do not in April of 1999. Blumenfeld’s job was to properly and provide clear direction for attorneys, leaving each lawfully handle Mr. dePape’s immigration into the attorney to make her own judgment based on her own United States to perform the work functions of a small ethical perception. 69 The following recent cases are town family physician. offered to give immigration attorneys some guidance The first conference between Trimark and when handling dual representation cases. Blumenfeld occurred on April 23, 1999.76 The facts show that dePape was unaware and uninvited to participate in this conference. At this conference, Trimark told Blumenfeld that Dr. dePape had a five- year contract, that both Dr. dePape and Trimark expected a long-term employment relationship that 7 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4 would likely last beyond five years, and that Dr. attempt to secure a TN visa for Dr. dePape. In order to dePape had not taken the three-stage set of do so, Blumenfeld applied the same procedure it examinations known as the USMLE’s. Blumenfeld previously used with six doctors who emigrated from knew that if Dr. dePape had not taken the USMLE’s Canada to work in the United States.85 The court noted that he would be ineligible for the H-1B visa, the that the facts showed a bit of “cutting and pasting” in proper visa for Dr. dePape to enter under in order to various documents (likely used as a “go-by” meet the expectations of both parties. Without the document), so much so that one of the documents still USMLE’s, Dr. dePape could only enter using the TN had the name of a different doctor in the form. The visa, which has a specific provision indicating that the court is also disturbed by Blumenfeld’s sole decision to doctor had no intention of remaining permanently in change to job title and job description. 86 The new job the United States. However, Blumenfeld failed to title was “physician consultant” and the job description mention this fact to Trimark.77 alluded to “community health care needs assessment,” On April 26, 1999, Blumenfeld sends Trimark the which mentioned nothing about the doctor’s intent to engagement letter listing both Trimark and Dr. dePape practice medic ine in the United States.87 In addition, if as the la w firm’s clients.78 The letter focused on the H- the doctor entered the United States with a TN visa, the 1B visa process and did not mention the limitations a doctor would be permitted to conduct research and to of the TN visa. Blumenfeld did not send a copy of this teach, but would not be allowed to practice medicine letter to Dr. dePape, nor did the facts show Blumenfeld unless it was incidental to the teaching process.88 The requesting Trimark to forward the letter to the doctor, facts and the doctor’s testimony show that the doctor even though Blumenfeld claims this as a defense.79 always intended to practice medicine because that is To make a long story longer, Blumenfeld then what he was trained to do. 89 Finally, after shipping all began the labor certification process.80 First, their belongings to Iowa and making arrangements to Blumenfeld places an employment advertisement in move permanently, on June 8, 2000, Dr. dePape and various national newsletters advertising the position. his fiancée traveled 3000 miles to arrive to the Buffalo, The court notes that Blumenfeld played a game of New York entry point, per the direction of “smoke and mirrors” because the specific foreign Blumenfeld. 90 There, they were denied access after a national was already chosen, therefore, the long ordeal with the INS and the local immigration advertisement had to be written negatively enough so attorney, Mr. Eiss, who was retained by Blumenfeld to that no U.S. citizen would think to apply. 81 The court help dePape at the border.91 notes that Blumenfeld charged substantial fees for At this meeting between dePape and Eiss, dePape placing these advertisements, particularly when first learned of the new title of “physician consultant” Blumenfeld knew that Dr. dePape would not qualify and was told that he could not work in the United for the H-1B visa without completing the USMLEs.82 States as a family physician. 92 All dePape knew at that To top it off, Blumenfeld never explained the point was that he was entering on a temporary visa, importance of taking the USMLEs to Dr. dePape, so which was communicated to him in a 1/10th of an hour the doctor did not know that his ability to immigrate conference with Dr. dePape, by the way, the only into the United States, in order to perform his work conference Blumenfeld held with dePape.93 At this function was ever in jeopardy. After Blumenfeld’s meeting with Eiss, Eiss told dePape that he needed to initial attempts to retain an H-1B visa for the doctor answer the INS interviewer’s questions with answers became questionable, the law firm switched gears and that were consistent with the submitted application.94 began the process of obtaining a TN visa.83 Again, Dr. dePape was uncomfortable with being told by “his Blumenfeld never explained the stringent requirements attorney” that he needed to lie to immigrate into the and limitations of the TN visa to Dr. dePape or to United States. Due to his discomfort, Dr. dePape told Trimark, which would place a direct bar on each the immigration officer the truth during his interview, party’s desire to continue a long-term and permanent which completely deviated from the information in the employment relationship. 84 The INS recognizes the application submitted by Blumenfeld. 95 The INS concept of “dual intent” with the H-1B visa, meaning official denied entry to the doctor and sent him back to that even though it is also a temporary visa, a pending Canada. The TN visa the doctor was entering with application for permanent residency does not would not allow him to practice medicine in the United disqualify the alien from receiving the H-1B status. States.96 Attorney Eiss, possibly forgetting he was an The bottom line is that in order for the parties’ interest extension to the attorney-client relationship between to have been met, Blumenfeld had no option but to Dr. dePape and Blumenfeld, apparently did not see the make every effort to lawfully obtain an H-1B visa for need to return to counsel dePape further. So, after Dr. dePape. being turned back to Canada and being left alone, Dr. Essentially, as time went by and the lack of dePape phoned his contact at Trimark and explained communication continued, Blumenfeld continued to the situation. His contact, Ms. Hutto, suggested that he 8 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4 try to enter the U.S. with a tourist visa, an attempt that engagement letter to the doctor, sent a letter not only failed, but also resulted in Dr. dePape being explaining the results of the conference called a liar. He and his fiancée were then searched and (including the requirements of the H-1B visa felt like they were being treated as criminals. Dr. and the TN visa), phoned Dr. dePape to make dePape was strongly told not to return and was sure the doctor understood the visa escorted back to Canada.97 requirements and to answer any questions the Once in Canada, the court notes that Dr. dePape doctor may have had, and explained the new was stranded with no job, no home, and no possessions title and job description to get the doctor’s – “not even his medical bag.”98 The court could only approval to send in that information. The imagine what a terrible feeling this must have been for court found Blumenfeld to have breached its Dr. dePape, since he basically had his “American duty to communicate with and advise their dream” pulle d right from under him. client, Dr. dePape.105 Throughout the court’s discussion of the facts of · Blumenfeld’s actions caused Dr. dePape to this case, the court finds Trimark’s behavior as not fail at gaining entry into the United States. reaching the point of negligence because Trimark met In fact, the court notes that Blumenfeld’s its responsibilities to Dr. dePape. The court holds the actions offended the court because the law firm entirely liable because the court found that change in the job title and job description, Blumenfeld did not meet its duty of care to its clients.99 coupled by the fact that Blumenfeld had an The court specifies the following actions as being INS point of contact at the Buffalo, New part of the negligence claim: York entry point, appears to be a “sham transaction” that Blumenfeld had consistently · Blumenfeld and Dr. DePape had an attorney- used to get Canadian doctors across the client relationship.100 border. The court noted that Blumenfeld · Blumenfeld breached its duty to Dr. dePape attempted to perpetrate a fraud on the INS by by failing to communicate with and properly representing that Dr. dePape sought entry advise Dr. dePape about the immigration into the United States as a Physician process, the visas, and the severe limitations Consultant. Therefore, the court held that, by of the TN visa.101 the greater weight of the evidence, · Blumenfeld breach of duty to Dr. dePape was Blumenfeld caused Dr. dePape’s alleged so obvious that it did not require expert damages.106 testimony because it was so outrageous that · Finally, the court determines that Blumenfeld any layperson could easily recognize it.102 is responsible for DePape’s lost income · Blumenfeld did not give Dr. dePape enough because had dePape fully understood the information to make an informed decision, situation, he may have sought other avenues thus violating, Missouri’s Rules of either in Canada or may have taken the Professional Conduct 4-1.4 (2002),“ The USMLEs. Blumenfeld was ordered to pay client should have sufficient information to Dr. dePape $203,736.20 U.S. for his lost participate intelligently in decisions income. In addition, the court awarded Dr. concerning the objectives of the dePape $75,000 U.S. because the emotional representation and the means by which they distress damages resulting from are to be pursued, to the extent the client is Blumenfeld’s negligence was not one-step willing and able to do so....” 103 In fact, the removed.107 facts how that Blumenfeld only held one conference call with Dr. dePape and it lasted In conclusion, the court in dePape reached its holdings 1/10th of an hour even though Blumenfeld finding that Blumenfeld caused the transaction to fall billed Trimark for one hour.104 There was apart and ruined the life of Dr. dePape as a result of the nothing in the record to support law firm’s lack of communication with its clients. Blumenfeld’s assertions that they relied on The following case, Gonzalez, focuses on an issue Trimark to communic ate directly with Dr. where an attorney’s communication occurred, dePape. In fact, Blumenfeld’s duty to however, the communication was lacking in fully communicate with its clients belongs to explaining the consequences of a guilty plea to the Blumenfeld only. Finally, the court notes that alien. Blumenfeld had various opportunities to communicate with the doctor. For example, B. Jose Luis Vega Gonzalez v. State of Oregon108 Blumenfeld could have sent a copy of the Mr. Gonzalez sought post-conviction relief due to ineffective assistance of counsel. Mr. Gonzalez’s 9 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4 argued that his attorney was ineffective because he plea, such as the period of incarceration or the fine that failed to advise him on the effect a guilty plea [to drug will be imposed at sentencing, but are not required to charges] would have on his immigration status. explain consequences that are not part of the penalty Mr. Gonzalez’s counsel explained that entering a imposed by the statute the defendant is accused of.”113 guilty plea to drug charges “may” affect his The exception the Lyons case created was “for immigration status. However, the word “may” proved attorneys to provide constitutionally adequate misleading to Mr. Gonzalez. Recent changes in representation to clients who are considering whether immigration and drug laws essentially stated that an to accept a guilty plea, Oregon attorneys must tell their alien, convicted of an aggravated felony, would alien clients about the risk of deportation.”114 essentially be deported. Per 8 U.S.C. 1228(C)(2000), In analyzing the continuing discussion of the “[a]n alien convicted of an aggravated felony shall be Oregon Court of Appeals in this case, it becomes conclusively presumed to be deportable from the apparent that the court is worried about the current lack United States.” In addition, 8 U.S.C. 1229(d) (2000) of mechanisms available for Mr. Gonzalez and other states that the Attorney General is required to “begin aliens to avoid deportation. The drastic changes in the any removal proceeding [against an alien convicted of immigration and drug laws have developed a system an aggravated felony] as expeditiously as possible after that has a high probability of deportation for these the date of the conviction.” individuals, as well as a sense of finality for that The court concluded that the recent changes in individual’s probability of remaining in the United immigration and drug laws basically require the States. If Mr. Gonzalez had entered into the plea deportation of aliens convicted of aggravated felonies. agreement under a misunderstood premise and without Due to the forcefulness of the current immigration fully understanding the severe consequences he would scheme, the court found that Mr. Gonzalez’s trial suffer, then Mr. Gonzalez’s constitutional rights, for counsel was “obligated to tell petitioner that he was the state of Oregon, would have been violated and the pleading to an aggravated felony and that, unless the policy behind Oregon’s constitution would have failed. United States Attorney General or his designee chose If individual is not fully aware of the “collateral not to pursue deportation proceedings against consequences” at the time in which the guilty plea is petitioner, he would be deported as a result of his entered, then a violation of the Oregon constitution will guilty plea.” In addition, the court concluded, occur. The Court consistently compared the laws of the “Counsel’s failure to give petitioner that information past to the post 9-11 laws and took the changes in these before petitioner pleaded guilty constituted a failure to laws into consideration in deciding this case. The fact provide petitioner with constitutionally adequate legal that the attorney used the word “may” in describing the assistance under Article I, Section 12, of the Oregon possibility of a change in Gonzalez’s immigration Constitution.”109 status could have resulted in a severe injustice against Next, the court turned to Mr. Gonzalez’s Gonzalez. Mr. Gonzalez had been in the United States argument that he would not have entered a guilty plea since 1987 and had a family in Oregon. had he known the consequences of a guilty plea on his Therefore, to protect individual rights and immigration status. The critical issue for the court of maintain adequate representation, attorneys must appeals was whether Mr. Gonzalez would have entered explain to clients that a guilty plea will likely result in into a plea agreement had he known the consequences removal. In addition, the practitioner should be of a guilty plea on his immigration status.110 The convinced that the client fully understands the Court of Appeals held that Mr. Gonzalez had shown consequences of a guilty plea and may choose to the trial court, by a preponderance of the evidence, that explain the consequences in writing and require a he would not have entered into a plea agreement had signature from the client. A formal “Statement of he been given constitutionally adequate advice about Understanding” in the client’s native language may the effect of that his guilty plea would have on his serve to ensure that the client understands the immigration status.111 The Court of Appeals affirmed consequences of a guilty plea and will serve as a the decision. degree of proof to show an interested party that the This case was decided on January 28, 2004. The practitioner took preventive steps to ensure that the court’s decision included a lengthy discussion of the client understood the consequences of important changes in immigration and drug laws since the decisions being made by the client after being Oregon Supreme Court had decided Lyons v. Pearce112. thoroughly advised of her options by the practitioner. The Lyons case had placed an exception in the A sample “statement of understanding” is included in collateral consequences rule that many states follow, Exhibit D. including Oregon. The collateral consequence rule The following case, the Madeline Close case, is a generally requires a criminal defense attorney to breach of contract case based on an employment “advise the client of the direct consequences of a guilty agreement between Ms. Close, from London, and 10 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

Computec, a programmer head-hunter working for Attorney), to file Mr. Saraswati's employee-sponsored IBM. petition for permanent resident status with the Immigration and Naturalization Service (INS).118 The C. Madeline Close v. Computec International INS approved Saraswati's residency petit ion and Resources, Inc. 115 reduced the time required for the plaintiff to obtain Madeline Close was offered an opportunity to permanent status.119 Mr. Saraswati's permanent leave London, England to take a position as a computer resident status pending when he was terminated from specialist for IBM through a contract with Computec in his job. 120 The law firm, representing both plaintiff and Dallas, Texas. Computec was basically a “head- his former employer, notified the INS of Saraswati’s hunter” for IBM. After signing an employment termination and cancelled his temporary work agreement with Computec and learning that her visa authorization and petition for permanent residency. 121 had been approved, Ms. Close did not hear from Based on these actions, Saraswati sued Wildes for legal Computec about her position in the United States. malpractice and breach of fiduciary duty. 122 Once she contacted Computec, she learned that some A jury found for plaintiff on both causes of action of the contracts with IBM had been canceled and the and awarded him damages, which were later reduced position she was originally hired for was no longer by the court in an amended judgment.123 The amount available. However, the contact for Computec, demanded by Mr. Saraswati was $500,000 due to Williams, told Ms. Close not to worry because other policy limits. Wildes had offered Mrs. Saraswati similar positions would become available. Essentially, $20,00o before trial and $155,000 after the trial and none of these positions became available and Ms. before the jury verdict.124 As mentioned above, the Close found herself unemployed from December 1, jury found for the client. The resulting amounts were 1998 until June 23, 1999 because she relied, to her $365,000 total, divided into $65,000 for economic detriment, to the statements made by Computec’s damages and $300,000 for non-economic damages.125 representative, Williams. The wage loss amount totaled $82,999.126 The client In September of 2000, Ms. Close filed an action also received $8,900 for attorney fees.127 against Computec, eventually alleging three causes of Both sides appealed. The parties here settled the action: matter privately before the preparation of the record was complete and agreed to vacate the trial court 1. breach of the employment agreement, judgment as part of that settlement.128 The parties were 2. breach of the covenant of good faith fair seeking to avoid the costly appeal and cross-appeal that dealing, and the judgment has generated and to prevent any 3. promissory estoppel. negative implications the judgment may have on the law firm’s reputation, which are considered incentives Ms. Close initially won $102,000 under the breach of for pretrial settlement.129 contract claim. However, on appeal, the amount was The Court of Appeal, J. Nares, held that parties' lowered to $98,000, which was the amount of income settlement agreement satisfied statutory requirements Ms. Close lost due to her reliance on Computec’s for vacating a judgment on stipulation of parties.130 In employment agreement.116 Neary v. Regents of University of California , the The following case, Saraswati v. Wildes, deals Supreme Court held “when the parties to an action with a situation where the law firm (Wildes & agree to settle their dispute and as part of their Weinberg, New York), who was representing both the settlement stipulate to a reversal of the trial court employer and the employee, Saraswati, notified the judgment, the Court of Appeal should grant their INS of Saraswati's termination from his employment request for the stipulated reversal absent a showing of and cancelled his temporary work authorization and extraordinary circumstances that warrant an exception petition for permanent residency. Based on these to this general rule. Any determination that such actions, Saraswati sued the Wildes law firm for legal circumstances exist must be made on a case-by-case malpractice and breach of fiduciary duty. A jury found basis.”131 In addition, the court has to ensure that the for plaintiff on both causes of action and awarded him Code of Civil Procedure section 128, subdivision (a)(8) damages, which were later reduced by the court in an was not violated, which provides that before the court amended judgment. may accept and confirm the stipulated reversal or vacation of a judgment it must find: "(A) There is no D. Ranganath Saraswati v. Michael J. Wildes117 reasonable probability that the interests of nonparties The plaintiff, Saraswati, came to the United States or the public will be adversely affected by the reversal. on a temporary work visa. His employer, Polese Co., [¶] (B) The reasons of the parties for requesting hired a New York immigration law firm, Wildes & reversal outweigh the erosion of public trust that may Weinberg (as in Leon Wildes, John Lennon’s result from the nullification of a judgment and the risk 11 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4 that the availability of stipulated reversal will reduce defraud, Lew placed in the mail a DOL Form-750 on the incentive for pretrial settlement." 132 behalf of a particular alien. Lew was convicted on six The court found that where the agreement of these counts.140 between the client, law firm, and attorney to settle the A DOL Form-750 is an "Application for Alien appeal of judgment entered in favor of client on Employment Certification." The form is signed by an malpractice and contract claims satisfied statutory employer and states that the employer will hire a requirements for vacating a judgment on stipulation of particular alien for a particular position. 141 Aliens seek parties; (1) there was no reasonable possibility interests employment certification from the DOL to attempt to of nonparties or the public would be affected, (2) obtain permanent resident status from the INS. The vacation of judgment would not interfere with pending certification process is divided into steps. First, the attorney disciplinary proceeding in New York, and (3) employer must show that United States legal residents the parties were seeking to avoid the costly appeal and are not available to fill the particular position.142 If the cross-appeal, rather than seeking to reverse or vacate DOL determines that the employer has exhausted the judgment addressing substantive legal issues of interest United States labor market, certification is approved to the public at large, which would erode the public and the employer can then seek permanent resident trust. 133 The judgment was reversed and the superior status for the alien by filing a form with the INS.143 court was directed to set aside the judgment and The facts and discussion of the case follows dismiss the action with prejudice.134 verbatim: “Joshua Chang referred approximately fifty The client had additionally reported that the alien clients to Lew. Lew would typically question the wrongful termination case went to trial and that he alien about his or her background. Often Chang would obtained a judgment against the employer, Polese Co., translate. Chang sometimes used two corporations with and the two parties settled for a confidential amount.135 which he was affiliated, Hundred Deers Company and Additionally, Mr. Saraswati claimed emotional distress Shing Chi International, to facilitate obtaining DOL due to difficulties with defendant attorneys, certification for Lew's clients. On other occasions a immigration status and loss of ability to attend his new company would be established to serve as the mother's death service.136 employer. After meeting with the aliens, Lew would Please see Exhibit G for the entire case. prepare and mail DOL Forms-750 on behalf of the employers, tailoring the job requirements to the E. U.S. v. Lew137 backgrounds of Lew's alien clients. After obtaining After a jury trial, Mr. Bill Lew, an immigration labor certification, Lew would have his secretary attorney was convicted of six counts of mail fraud and prepare immigration forms. Lew's secretary testified five counts of making false statements to the that sometimes Lew would tell her to put information Department of Labor during Operation Strong Tree. on the forms that was different from the information Mr. Lew sought an appeal in which the Court of the employer had provided. Joshua Chang was indicted Appeals held that: “(1) attorney could not be convicted along with Lew. He testified at Lew's trial that he had of mail fraud on theory that misrepresentations were agreed to testify truthfully and cooperate as part of a made to the Government while money was obtained plea agreement. from clients; (2) evidence regarding false statements by Lew argues that there is no evidence that he attorney to Immigration and Naturalization Service obtained the money from his clients by defrauding was admissible; (3) trial court properly limited them, and thus his conviction must be reversed under attorney's cross-examination of employer and another McNally v. United States.144 The government concerning real estate deal between them; and (4) responds that its theory of the case was that "the prosecution's vouching for credibility of witnesses by principal object of the mail fraud scheme was to eliciting testimony regarding their agreements to testify defraud Lew's clients of the attorneys fees they paid truthfully as part of plea bargain and non-prosecution him." The government also asserts that "the undisputed agreement was not plain error.”138 facts are that aliens paid Lew a fee for advice and Mr. Lew was indicted for making assistance from him" and "they were deceived into misrepresentations to the Department of Labor (DOL) believing that they could lawfully become permanent on a Form-750, indicating that a company was engaged residents through Appellant's scheme." The in a particular business and would employ a particular government, however, has been unable to refer us to, person when in fact Mr. Lew knew the company was and we have been unable to find, any evidence in the not engaged in the business and would not legitimately record that Lew deceived his clients. Furthermore, a employ the person. Lew was convicted on five of these requested jury instruction that would have required a counts (there were a total of eight counts).139 Each of finding that Lew deceived his clients was denied. Lew counts one through seven of the superseding argued that such an instruction was necessary because indictment alleged that, in connection with a scheme to "mail fraud requires a relationship between the falsity 12 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4 and the collection of the money." Instead the jury was banks reimburse the accounts of customers who are instructed that the "scheme was to make false wrongly charged, Bonallo was effectively harming the statements to the United States for the purpose of bank when he altered the records. Id. Thus, Bonallo obtaining money from defendant's clients." contained the element that was missing in McNally and In McNally the defendants were state political in the case at bar: an intent to obtain money or property leaders who designated a particular company to from the victim of the deceit. See also United States v. provide insurance policies to the state. In return, this Mitchell, 867 F.2d 1232, 1233 (9th Cir. 1989)(reversing company provided monetary kickbacks to companies mail fraud conviction because "[a]lthough both in which the defendants held interests. The fraud indictments alleged a scheme to obtain money and alleged was a failure to disclose to the state the state property, neither alleged a scheme to obtain them from officials' financial interests in these transactions. Such the governmental body" which was deceived); United a fraud was not sufficient to sustain a conviction under States v. Egan, 860 F.2d 904, 909 n. 2 (9th Cir.1988). the mail fraud statute, because only the government In McNally, on appeal the government asserted was deceived and the mail fraud statute does not that misrepresentations were made to the company protect the intangible right to good government. The from whom the money was received. Here the government attempts to distinguish this case from government claims that misrepresentations were made McNally by arguing that in McNally the Court simply to Lew's clients. However, there as here "there was limited the mail fraud statute to schemes designed to nothing in the jury charge that required such a finding." obtain money or property, holding that depriving the McNally, 483 U.S. at 361, 107 S.Ct. at 2882. Because government of its right to have its affairs conducted the jury instructions permitted conviction for conduct honestly was insufficient to constitute a violation of the not within the reach of section 1341, the convictions on mail fraud statute. The government contends that after the mail fraud counts must be reversed. McNally the elements of mail fraud remain unchanged, A judge's determination to admit "other crimes" except that the intent of the scheme must be to obtain evidence is reviewed for abuse of discretion. See money or property. Thus, the government argues, even United States v. Feldman, 788 F.2d 544, 557 (9th if misrepresentations were not made to the clients, the Cir.1986). A district court is accorded wide discretion conviction should be sustained because Lew obtained in making this determination. Id.; see also United money. States v. McKoy, 771 F.2d 1207, 1214 (9th Cir.1985) While it is true that after McNally the elements of ("sound discretion"). mail fraud remain unchanged except that the intent of the scheme must be to obtain money or property, the A. Evidence Regarding False Statements to the INS - Court made it clear that the intent must be to obtain Lew contends that the district court erred in admitting money or property from the one who is deceived: "the evidence that he made false statements to the INS. He words 'to defraud' commonly refer 'to wronging one in argues that this was "other misconduct evidence," since his property rights by dishonest methods or schemes,' he was charged with making false statements to the and 'usually signify the deprivation of something of Department of Labor, not the INS, and that its value by trick, deceit, chicane or overreaching.' " 483 probative value was substantially outweighed by the U.S. at 358, 107 S.Ct. at 2880-81 (quoting danger of unfair prejudice. See McKoy, 771 F.2d at Hammerschmidt v. United States, 265 U.S. 182, 188, 1214. He argues that the evidence should have been 44 S.Ct. 511, 512, 68 L.Ed. 968 (1924)). excluded under Rules 404(b) and 403 of the Federal This case is indistinguishable from McNally. In Rules of Evidence. McNally, as here, the defendants did obtain money in Mr. Lew poses a defense in part on the argument connection with the wrongdoing toward the that he was simply mistaken as to whether the jobs government. The missing element in McNally was that described on the DOL forms were really available. The the money was not received from the party deceived-- evidence of false statements to the INS was relevant the government. In United States v. Bonallo, 858 F.2d because it tended to establish Lew's purpose for 1427 (9th Cir.1988), a bank employee was convicted submitting the false statements to the DOL, and his of bank fraud for making automatic teller withdrawals knowledge that they were false. Rule 404(b) of the and then altering the computer records so that the Federal Rules of Evidence does not preclude the use of withdrawals would be charged to the accounts of other evidence of other misconduct to show intent, customers rather than his own. See id. at 1432. One of knowledge, or absence of mistake. The evidence was Bonallo's arguments on appeal was that, while it was not unfairly prejudicial. Admission of this evidence the bank that was deceived, the intent was to obtain was not an abuse of discretion. money from bank customers who were charged, not the bank, and thus there was no intent to defraud the bank. B. Yolanda Brassell's Testimony - Lew contends that Id. at 1434 n. 9. The court responded that because the judge erred in allowing Yolanda Brassell, Lew's 13 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4 former secretary, to testify that it was Lew's practice to [t]hough [the witness's] references to her plea violate certain requirements for DOL certification. He agreement do not "portray [the government] as a argues that because Brassell could not connect her guarantor of truthfulness" as directly as statements by testimony to any certain case, it was evidence of "other the prosecutor himself, they suggest that [the witness], crimes" and should have been excluded. The trial who might otherwise seem unreliable, has been judge held that this evidence was relevant to establish compelled by the prosecutor's threats and the Lew's purpose. This was not an abuse of discretion. government's promises to reveal the bare truth. The implication, moreover, remains that the prosecutor can III. LIMITATION OF CROSS-EXAMINATION - verify the witness's testimony and thereby enforce the Lew argues that the court erred by limiting Lew's truthfulness condition of its plea agreement. cross-examination of Shieh-Yu Chen Wu and Chang Wallace, 848 F.2d at 1474 (citation omitted) (quoting Lang Liao concerning a real estate deal between Wu United States v. Roberts, 618 F.2d 530, 537 (9th and Joshua Chang. Lew contends that this evidence Cir.1980)). In Wallace, in addition to eliciting the would have impeached Joshua Chang by showing that testimony of that witness, the prosecutor made he had a practice of manipulating aliens. We review a references to the plea agreement during his closing decision to limit the scope of cross-examination for argument and rebuttal. The court did not decide abuse of discretion. United States v. Bonanno, 852 whether these incidents together constituted plain error, F.2d 434, 439 (9th Cir.1988) , cert. denied, 488 U.S. since it remanded on another issue. 1016, 109 S.Ct. 812, 102 L.Ed.2d 801 (1989). Lew argues that the improper vouching requires This testimony was properly excluded under Rule reversal because the evidence "in essence, boiled down 608(b) of the Federal Rules of Evidence because it was to a credibility contest of the Government's witnesses, extrinsic evidence of a specific instance of conduct of a each of whom was impeached on virtually every issue witness offered to attack the witness' credibility. related to the charges." Mr. Lew also asserts that the evidence was In addition to Chang and Lin, Yolanda Brassell relevant to show Mrs. Wu's gullibility and potential and several of Lew's alien clients testified at trial. motivation and bias in testifying for the government. Brassell testified that Lew's practice was to violate Lew does not say how the evidence of a real estate requirements for DOL certification. Several aliens transaction in which Chang purportedly attempted to testified regarding conversations with Lew about their manipulate Mrs. Wu would impeach Mrs. Wu with backgrounds. After these conversations Lew would respect to her testimony in Lew's trial. The district prepare the Forms-750 describing one of the court did not abuse its discretion by limiting cross- corporations as being involved in a business related to examination regarding the real estate deal. the alien's background and needing an employee with Lew argues that the prosecution improperly the alien's qualifications. Many of these forms involved vouched for the credibility of Joshua Chang and the same companies, and only the nature of the Howard Lin by eliciting from them, on direct business and needs for employees changed to match examination, testimony regarding their agreements to the qualifications of the aliens. testify truthfully as part of plea bargain and non- In cooperation with the government Mr. Lin, an prosecution agreements respectively. alien, tape-recorded conversations with Lew. In one of Lew did not object to this testimony. Thus, it is these conversations Lin told Lew that there was a reviewed for plain error. company that would sign the documents but could not Under the plain error doctrine, Fed.R.Crim.P. 52(b), pay Lin's salary. Lin told Lew that payroll checks we recognize only "those errors that 'seriously affect could be issued and cashed to simulate Lin's the fairness, integrity or public reputation of judicial employment. After this meeting Lew submitted a proceedings,' " and we will reverse " 'solely in those Form-750 describing a position with this company. circumstances in which a miscarriage of justice would In light of this other evidence of Lew's guilt on the otherwise result.' "145 We review the alleged error in counts involving false statements to the DOL, the the context of the entire record to determine whether it government vouching in this case did not rise to the rises to the level of "plain error." level of plain error. Furthermore, in United States v. United States v. Wallace, 848 F.2d 1464, 1473 (9th Shaw, 829 F.2d 714, 718 (9th Cir.1987) , cert. denied, Cir.1988) (citations omitted) (quoting United States v. 485 U.S. 1022, 108 S.Ct. 1577, 99 L.Ed.2d 892 (1988) , Young, 470 U.S. 1, 15, 16, 105 S. Ct. 1038, 1046, we held that the government's statement to the jury in 1047, 84 L.Ed. 2d 1 (1985)). opening argument about the truthfulness requirement The Wallace court held that it was improper to of a plea agreement was harmless error where the allow the prosecution to elicit testimony on direct district court instructed the jury that because the examination regarding the truthfulness requirement of witness was the beneficiary of a plea agreement the a plea agreement. The court said: jury should view his testimony with greater caution 14 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4 than that of ordinary witnesses. In this case the judge $75,000 a week and got hundreds of people into the agreed to give an instruction that "[w]ith respect to country illegally. The Garrisi conviction is the first [witnesses who were testifying pursuant to agreements tangible result of Operation Strong Tree, a two-year- with the government] you should consider whether and old, nationwide investigation program run jointly by to what extent that testimony may have been the Labor Department, the INS and the FBI. Strong influenced by the government's promises or by the Tree investigations are still continuing in San grant of immunity. And it is my recommendation that Franscisco, Chicago, and New York, but have been you should look for corroborating circumstances in discontinued in Houston and Philadelphia, according to each case before giving full credibility to such press reports. Garrisi was the first of six California witnesses." Because there was substantial evidence immigration attorneys to be investigated for labor against Lew independent of the credibility of Chang certification fraud under the program. Three other and Lin, and because the judge's instruction "could la wyers are still under investigation, and the trial of only be taken by the jury to mean that the credibility of another Los Angeles attorney, Bill Lew, began the witness was by no means established by the plea recently. California was one of the first states to focus agreement, and that the issue was wholly open for the attention on labor certification cases strongly jury to decide", Shaw, 829 F.2d at 718, the vouching suggesting fraud, and Operation Strong Tree seems to was not plain error. be working well there, due largely to cooperation The convictions on the mail fraud counts are between the state and federal authorities. Laurette REVERSED. The convictions on the false statement Elsberry, a special consultant with the California State counts are AFFIRMED.”146 Employment Development Department and an expert witness at the Garrisi trial, told Interpreter Releases F. Operation Strong Tree147 that understaffing and a "keep the paper moving" “The Los Angeles Times recently reported that a philosophy have traditionally prevented state joint Labor Department-INS- FBI program to employment agencies from conducting adequate investigate labor certification fraud has brought in its background checks on labor certification applications first conviction. On September 25, 1987, U.S. District to determine if the employers are bona fide entities. Judge Robert H. Schnacke sentenced Los Angeles With a relatively simple investigation, she said, it can immigration attorney John Garrisi to a year and a day be determined if one suite is serving as the address for in prison and fined him $5,000 for filing false six or seven employers, or if a purported employer is statements on labor certification applications. Garrisi actually only an answering service or mail drop. Ms. also received a five year suspended sentence that will Elsberry identified herself as the source of a statement begin when he is released from prison. Disbarment appearing in some newspaper reports that 60% of all proceedings have begun, and Garrisi will be prohibited labor certifications filed are fraudulent. She said that from practicing immigration consulting in any capacity the statement had been misquoted from her trial during his five years on probation. testimony, and that she would estimate the real figure Garrisi successfully defended against six related at 40-50%, with only about 5% of the immigration charges at an earlier trial. There he contended that he attorneys and consultants responsible for the large had been so addicted to cocaine and alcohol that he number of bad applications. However, at the Garrisi was unaware of the fraud his office staff was sentencing Judge Schnacke had followed up on this perpetrating. The jury found him innocent on six of theme, warning that "Mr. Garrisi has followed a course seven counts, deadlocking on the remaining one. that all too many lawyers have followed in the past The judge declared a mistrial, and at his second without having criminal charges brought against trial Garrisi was found guilty of the single earlier them." Many California immigration attorneys were charge and a new one. alarmed at the implication that Garrisi was thought to At the sentencing, Judge Schnacke characterized be typical. Garrisi's operation as being "the most cold, calculated Prosecutor Orjales told Interpreter Releases that scheme...that we've seen in immigration law for some while only a small number of attorneys are responsible time." According to Assistant U.S. Attorney Rudolfo for the fraudulent applications, they are filing them in Orjales, who prosecuted the case, Garrisi placed ads in large numbers because they know the system is so Iranian newspapers and on TV, enticing wealthy susceptible to abuse. "We have 18,000 applications a Iranians to the U.S. with promises of INS work year, and they are reviewed by only 20 government authorization based on fraudulent labor certifications, employees," he said. "The kind of fraud and at a cost of $2,500 to $3,000 per person. Garrisi misrepresentation we are seeing is serious. Mom and reportedly established bogus companies, used phony Pop stores are petitioning to hire economists. foreign government rubber stamps and produced fake Supporting documents may include phony leases and visas. Orjales said that Garrisi made an estimated letters of recommendation, or statements of net income 15 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4 that have been altered from the actual $20,000 to The BIA gave a detailed explanation for these $120,000 a year to show the employer's ability to pay requirements. First, it noted that "litigants are generally the beneficiary's salary. Office personnel report being bound by the conduct of their attorneys." Lozada, 19 I. told to destroy any resumes received from U.S. citizen & N. Dec. at 639 (citing LeBlanc v. INS , 715 F.2d 685 job applicants. This is blatant and it has got to stop." (1st Cir. 1983)). Second, the "high standard" Mr. Orjales described the method used by announced in Lozada was necessary to assess the Operation Strong Tree to select its targets of "substantial number of claims of ineffective assistance investigation. The Labor Department, the INS and the of counsel that come before the Board." Id. (noting that California State Employment Development the requirements would ensure the "essential Department were each asked to provide a list of those information" needed to evaluate the claim is provided attorneys they felt were involved in labor certification to the Board). The requirement that former counsel be fraud. There was no consultation among the three notifie d was necessary to protect counsel's interests agencies in compiling their lists. Operation Strong Tree and to deter baseless accusations. See Id. The then used the lists to make a master list, starting with requirement regarding disciplinary allegations served the names of those attorneys who had been listed by all both to deter meritless claims and to aid in policing the three agencies. They took the first name on the list, and immigration bar. See Id. began paying close attention to his labor certification The BIA reaffirmed and further explained Lozada applications. The first areas of investigation were the in In re Rivera, Int. Dec. 3296 (1996). It noted that the purported locations of petitioning companies and their "bar discipline" requirement was necessary in light of most recent tax returns, if any had been filed. As the the fact that lawyers from any jurisdiction can practice evidence mounted, investigators would begin to before the immigration courts, while the BIA lacks any contact the aliens and the employers. Those who comprehensive disciplinary rules. Id. It also noted that cooperated often became witnesses, and some of those the requirement protected against collusion between who didn't were indicted along with the attorney. What aliens and counsel in which "ineffective assistance" is they were turning up, Orjales said, was the "man to see used to achieve delay in immigration proceedings. Id. for a green card" in different alien communities. Mr. Finally, it reiterated that the complaint, like the other Orjales confirmed that nationwide, Operation Strong filings required by Lozada, greatly aided the BIA in Tree is in a period of "dormancy." However, he said, adjudicating the claim. See Id. The BIA concluded that the U.S. Attorney's Office in San Francisco is the filing of such a complaint, or a reasonable committed to continuing the prosecution of these cases, explanation for the failure to do so, was a "relatively despite the difficulties posed by distance and the need small inconvenience" for an alien seeking a new to fly witnesses from Los Angeles to San Francisco. hearing in an over-taxed system. Id. Applying Lozada, "The immigration laws apply to everyone, not just the BIA found that the petitioner's explanation for people coming across the Rio Grande. Being wealthy declining to file a disciplinary complaint was doesn't mean you can bypass the law by getting a inadequate, and precluded her motion to reopen based crooked lawyer," he affirmed.”148 on ineffective assistance. See Id. In this case, Lara filed a cursory, two-page motion III. TEXAS CASES: ATTORNEY LIABILITY to reopen. The BIA correctly found that Lara had not A. Lara v. Trominski149 complied with any of the Lozada requirements. First, In Matter of Lozada, 19 I. & N. Dec. 637, 639 Lara did not submit any affidavit explaining the (BIA), aff'd , 857 F.2d 10 (1st Cir. 1988), the BIA set relevant circumstances and agreement. Second, while out three procedural requirements for supporting a Lara had sent a letter to Perez, Lara admittedly filed his claim of ineffective assistance of counsel as a basis for motion to reopen before Perez had an opportunity to reopening. The BIA required: 1) an affidavit by the respond. Third, no disciplinary complaint had been alien setting forth the relevant facts, including the filed, nor any reasonable explanation made for the agreement with counsel regarding the alien's failure to do so. Lara's motion noted that, when Perez's representation; 2) evidence that counsel was informed reply was received, Lara would determine whether a of the allegations and allowed to respond, including grievance was warranted. In the motion, Lara requested any response; and 3) an indication that, assuming that a thirty days to file additional documentation. Lara's violation of "ethical or legal responsibilities" was motion to reopen was filed on April 22, 1997 and the claimed, a complaint has been lodged with the relevant BIA's decision rendered on July 21. Yet Lara did not disciplinary authorities, or an adequate explanation for use the additional time to correct any of his omissions the failure to file such a complaint. See Lata v. INS , under Lozada. The BIA's decision was correct, and 204 F.3d 1241, 1246 (9th Cir. 1999); Lozada, 19 I. & Lara did not file a petition for review. N. Dec. at 639. Instead, Lara filed a motion to reconsider. In conjunction with this motion, Lara complied with the 16 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4 second requirement, submitting a statement from Perez involved a violation of legal responsibilities, such that admitting that he had failed to inform Lara of the BIA's the bar discipline requirement was applicable. February 1997 order before the thirty-day deadline had That said, Lozada does not absolutely require that expired. Lara also claimed that the BIA's decision a disciplinary complaint be filed. Rather, a reasonable represented an "overly rigid" application of the first explanation can excuse the failure to file a complaint. and third Lozada requirements. As to the first See Lozada, 19 I. & N. Dec. at 639; Rivera, Int. Dec. requirement, Lara claimed it was inapplicable because 3296. Lara has not shown that the BIA abused its the obligation to inform him of the outcome of his discretion in finding that Lara did not sufficiently appeal did not require specific agreement, but rather explain his failure to file a complaint. First, in Rivera, was inherent in the attorney-client relationship. Lara the BIA rejected petitioner's similar contention that her also claimed that he was justified in declining to file a statement that her counsel's error was "inadvertent" bar complaint because an isolated omission such as was a sufficient explanation for failure to file a that made by his counsel was not a basis under the disciplinary complaint. See Rivera, Int. Dec. 3296. Texas bar rules for disciplinary action. Lara argued While Lara, in the motion for reconsideration, provided that, because Perez's actions were not the basis for a a more thorough argument, the BIA's decision was disciplinary complaint in Texas, this case did not consistent with Rivera. Second, the BIA's fear that involve a "violation of ethical or legal responsibilities," Lara's argument would eviscerate the bar complaint as Lozada requires to trigger the grievance requirement is not without foundation. Under Lara's requirement. formulation, the BIA would be required to investigate The BIA rejected Lara's claim. It stated that Lara the relevant state disciplinary law underlying each was requesting that the Lozada requirements be failure to file a complaint. This would defeat the modified. After briefly discussing Lara's arguments, administrative-efficiency rationale underlying the the BIA noted that it had recently reaffirmed the requirement and in fact force the BIA into additional Lozada requirements in Rivera. Declining to modify legal realms in which it lacks expertise. Moreover, the Lozada, the court denied Lara's motion for circumstances constituting Perez's ineffective reconsideration. assistance are not exceptional. If ineffective assistance We find that the BIA did not abuse its based on simple inadvertence was enough to escape the considerable discretion in refusing to reconsider its bar discipline requirement in most or all cases, denial of reopening. Numerous other circuits have depending on the applicable state law, the requirement upheld the Lozada requirements. See Lata , 204 F.3d would lose much of its applicability. The important 1241 ("The Board has laid out a comprehens ive goals served by the bar discipline requirement, and the procedure that a petitioner should follow to support fact that it has been repeatedly endorsed by other such a claim, and our sister circuits have adopted its courts, caution against this outcome. Finally, much of reasoning. We now do the same.") (citing Lozada, Lara's argument is based upon the contention that a Henry v. INS, 8 F.3d 426, 439 (7th Cir. 1993), and disciplinary grievance against Perez would have been Esposito v. INS , 987 F.2d 108, 110-12 (2d Cir. 1993)); frivolous, but Lara has not established this premise. Bernal-Vallejo v. INS , 195 F.3d 56, 64 (1st Cir. 1999) Under the circumstances, Lara has not shown the BIA (citing the Lozada requirements favorably in abused its discretion in finding insufficient his dismissing ineffective assistance claim for failure to explanation for failing to file a grievance against Perez. exhaust available BIA remedy); Stewart v. INS , 181 Rule 1.01 of the Texas Rules of Professional F.3d 587, 596 (4th Cir. 1999) (dismissing ineffective Conduct forbids a lawyer from "neglecting a legal assistance claim for failure to "properly" assert claim matter entrusted to the lawyer." See Tex. Rul. Prof. "to the BIA in the manner prescribed by Matter of Conduct 1.01 (1999). In claiming that a grievance Lozada"). We agree that the general application of the against Perez would have been frivolous, Lara relies Lozada rules is not an abuse of discretion. entirely on the statement in the comments to this Rule We also find that the BIA did not abuse its that "a lawyer who acts in good faith is not subject to discretion in applying Lozada to this case. In discipline, under those provisions for an isolated particular, as to the bar discipline requirement, Lara's inadvertent or unskilled act or omission, tactical error, argument that Perez's failure to inform Lara of the or error of judgment." This statement is insufficient to BIA's decision did not involve a "violation of ethical or show that a grievance against Perez would have been legal responsibilities" is without merit. Lara admits that frivolous. The same comments state that "a lawyer is Perez committed legal malpractice. The fact that legal subject to discipline for neglecting a particular matter." malpractice is a tort indicates that there is a "legal They add that, "in extreme instances, as when a lawyer responsibility" to avoid it. Given the plain language of overlo oks a statute of limitations, the client's legal Lozada, as well as its obvious intent, Lara's claims position may be destroyed." In this case, Lara alleges just such an "extreme" instance of neglect, by which 17 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

Lara lost entirely his opportunity to appeal the BIA's did not abuse its discretion in classifying Lara's decision affirming his final deportation order. By supplemental filing, seeking new relief not formerly Lara's own characterization, Perez was ineffective available, as a motion to reopen. See Varela v. INS, under the "high standard" the BIA applies to claims of 204 F.3d 1237, 1239 n. 4 (9th Cir. 2000). A motion to ineffective assistance of counsel. Lozada, 19 I. & N. reopen is the motion used to present new facts not Dec. at 639; see also id. at 638 (reopening based on already in evidence. See id.; Mamoka v. INS , 43 F.3d ineffective assistance of counsel is predicated on its 184, 188 (5th Cir. 1995). Nor did the BIA abuse its constituting a deprivation of due process). Accepting discretion in denying Lara's motion on the ground that these circumstances alleged by Lara, a non-frivolous a petitioner can only file one motion to reopen. 8 grievance could have been filed. First, considered in C.F.R. § 3.2(c) expressly states that a petitioner may context, the "isolated inadvertent act or omission" only file one motion to reopen deportation or exclusion statement arguably refers to minor errors, as opposed proceedings. See 8 C.F.R. § 3.2(c)(2) (1997); Saiyid v. to breaches of duty sufficiently egregious to constitute INS, 132 F.3d 1380, 1385 (11th Cir. 1998). "constitutionally" inadequate assistance of counsel. We therefore VACATE the district court's grant Second, Perez's was not an isolated error within the of Lara's § 2241 petition and REMAND with context of a proceeding, but rather precluded Lara instructions to dismiss the petition for lack of entirely from pursuing an appeal. Given the egregious jurisdiction. We AFFIRM the BIA's denial of nature and severe consequences of Perez's alleged reconsideration of its denial of reopening of Lara's misconduct, Lara has not shown that a grievance would deportation proceedings.”150 have been frivolous. While we do not rely upon the point, we are B. Matter of Leslie Hazlett Thacker151 further disinclined to reverse the BIA because Lara Case is included in full. only attempted to provide a satisfactory explanation for Appellant attorney through her attorney, Mr. Dick his failure to file a bar complaint and to include the DeGuerin, sought review of appellee board of relevant agreement with his counsel on disciplinary appeals' interlocutory order suspending her reconsideration. Lara's cursory motion to reopen from the practice of law because she was convicted of reflects both an awareness of the Lozada requirements purchase of a child in violation of Tex. Penal Code and a complete failure to attempt to comply with them Ann. § 25.11(a) (1989). or to provide a satisfactory explanation for not doing Appellant attorney arranged private adoptions, so. The fact that Lara's counsel also asked for extra and was convicted in the district court of purchase of a time to make the relevant filings, then failed to do so, child in violation of Tex. Penal Code Ann. § 25.11(a) does not help either. The BIA properly denied the (1989), and sentenced to probation and fined. While motion to reopen, and Lara did not appeal. It was only appellant's conviction was on appeal, appellee state bar on reconsideration that Lara either complied with, or sought from appellee board of disciplinary appeals attempted to provide a sufficient explanation for his (board) an interlocutory order suspending appellant's decision not to comply with, each of the Lozada license to practice law. Appellee board suspended requirements. There is no apparent reason why this appellant's license and ordered that she would be could not have been done in the original motion. If disbarred should her conviction become final. motions to reopen are disfavored for the same reasons Subsequently, appellant sought review, claiming that as denials of rehearing, see Doherty, 502 U.S. at 323, the purchase of a child crime in violation of § 25.11(a) then this sort of motion for reconsideration of a denial was not one of moral turpitude. Appellee state bar filed of reopening must be doubly disfavored. Cf. Lowry v. a motion to dismiss for want of jurisdiction. The court Bankers Life and Cas. Retirement Plan, 871 F.2d 522, affirmed appellee board's suspension order. The court 525 (5th Cir. 1989) (Fifth Circuit will not consider had jurisdiction to review the instant matter pursuant to arguments raised for the first time on rehearing unless Tex. R. Disciplinary P. 7.11. The court found that the they could not have been raised earlier). purchase of a child under § 25.11(a) was a crime We therefore hold that the BIA did not abuse its involving moral turpitude. The children's mother was discretion in denying reconsideration of Lara's motion induced by the payment of money to give up her to reopen his deportation proceedings based on children without protection from overreaching and ineffective assistance of counsel. without assurance that the children's best interest As discussed above, Lara also filed a would be protected. "supplemental points and authorities" with his motion The court affirmed appellee board of disciplinary to reconsider in which he requested reopening to apply appeals' order suspending appellant attorney's license for adjustment of status. Lara apparently claimed that to practice law because the purchase of a child was a adjustment had become available to him when his wife felony involving moral turpitude. obtained U.S. citizenship in October 1997. The BIA 18 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? 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The Court’s opinion, delivered by Justice John license to practice law suspended, and should her Cornyn, is reprinted in full as follows: “In this conviction become final, BODA ordered Thacker attorney discipline case, we decide whether violation disbarred. of TEX. PENAL CODE § 25.11 (" § 25.11") is a Thacker was convicted of the purchase of five felony involving moral turpitude under the Texas Rules children from the same mother, including a set of of Disciplinary Procedure. We hold that it is. unborn twins, for purposes of adoption. Texas Rule of Disciplinary Procedure 8.01 TEXAS PENAL CODE § 25.11 provides: provides: Generally: When an attorney licensed to § 25.11. Sale or Purchase of Child practice law in Texas has been convicted of an Intentional Crime or has been placed on probation for (a) A person commits an offense if he: an Intentional Crime with or without an adjudication of guilt, the Chief Disciplinary Counsel shall initiate a (1) possesses a child or has the custody, Disciplinary Action seeking compulsory discipline conservatorship, or guardianship of a pursuant to this part. Proceedings under this part are child, whether or not he has actual not exclusive in that an attorney may be disciplined as possession of the child, and he offers to a result of the underlying facts as well as being accept, agrees to accept, or accepts a disciplined upon the conviction or probation through thing of value for the delivery of the deferred adjudication. child to another or for the possession of Inquiry as to whether a crime is an "intentional" the child by another for purposes of crime under the rules is guided by Texas Rule of adoption; or Disciplinary Procedure 1.06(o), which defines an (2) offers to give, agrees to give, or gives a intentional crime as: (1) any Serious Crime that thing of value to another for acquiring or requires proof of knowledge or intent as an essential maintaining the possession of a child for element or (2) any crime involving misapplication of the purpose of adoption. money or other property held as a fiduciary. As only (b) It is an exception to the application of this the first alternative seems applicable here, resolution of section that the thing of value is: whether Thacker's crime is an intentional one involves two issues: (1) is the crime a "serious crime" as defined (1) a fee paid to a child-placing agency as by 1.06(u), and (2) if a serious crime, is it a serious authorized by law; crime "that requires proof of knowledge or intent as an (2) a fee paid to an attorney or physician for essential element." Thacker only challenges the issue services rendered in the usual course of of whether violation of § 25.11 is a felony involving legal or medical practice; or moral turpitude, which, under 1.06(u), is part of the (3) a reimbursement of legal or medical definition of "Serious Crime." Thus, Thacker does not expenses incurred by a person for the challenge whether § 25.11 is a serious crime "that benefit of the child. requires proof of knowledge or intent as an essential element." (c) An offense under this section is a felony of the Texas Rule of Disciplinary Procedure 8.04 third degree unless the actor has been provides: The Board of Disciplinary Appeals shall hear convicted previously under this section, in and determine all questions of law and fact. When an which event the offense is a felony of the attorney has been convicted of an Intentional Crime or second degree.152 has been placed on probation for an Intentional Crime without an adjudication of guilt, he or she shall be Facts of the Case: suspended as an attorney licensed to practice law in “In January of 1992, Leslie Hazlett Thacker, a Texas during the appeal of the conviction or the order lawyer engaged primarily in the arranging of private of deferred adjudication. Upon introduction into adoptions, was convicted by a jury in the 263rd evidence of a certified copy of the judgment of Judicial District Court of Harris County of purchase of conviction or order of deferred adjudication and a a child and was assessed a penalty of ten years' certificate of the Clerk of the Supreme Court that the probation and a $ 10,000.00 fine. Although this attorney is licensed to practice law in Texas, the Board conviction is on appeal, and for that reason has yet to of Disciplinary Appeals shall immediately determine become final, the State Bar of Texas sought from the whether the attorney has been convicted of an Board of Disciplinary Appeals ("BODA") an Intentional crime or granted probation without an interlocutory order suspending Thacker's license to adjudication of guilt for an Intentional Crime. practice law. Finding that Thacker had been convicted Uncontroverted affidavits that the attorney is the same of an intentional crime, BODA ordered Thacker's person as the person convicted or granted probation 19 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4 without an adjudication of guilt are competent and moral turpitude is a dispositive "determination," which sufficient evidence of those facts. Nothing in these if reversed would vacate not only Thacker's suspension rules prohibits proof of the necessary elements in such from the practice of law, but also the sole basis for her Disciplinary Action by competent evidence in any disbarment, we hold that classification of a crime as a other manner permitted by law. The Board of felony involving moral turpitude is a final Disciplinary Appeals shall sit, hear, and determine determination subject to our review as per Rule 7.11. whether the attorney should be disciplined and enter Whether a crime is one involving moral turpitude judgment accordingly within forty-five days of the is a question of law. State Bar of Texas v. Heard, 603 answer day; however, any failure to do so within the S.W.2d 829, 835 (Tex. 1980). As we have recently time limit will not affect its jurisdiction to act. Any stated, this legal question is to be resolved "by a suspension ordered during the appeal of a criminal consideration of the nature of the offense as it bears on conviction or probation without an adjudication of guilt the attorney's moral fitness to continue in the practice is interlocutory and immediately terminates if the of law." In re Humphreys, 880 S.W.2d 402 (Tex. conviction or probation is set aside or reversed. 1994)(quoting Heard, 603 S.W.2d at 835). When Texas Rule of Disciplinary Procedure 8.05 deciding whether a crime is a "felony involving moral provides: Disbarment: When an attorney has been turpitude," we limit our consideration to the nature or convicted of an Intentional Crime, and that conviction essence of the offense. Our inquiry relates to the has become final, or the attorney has accepted classification of the crime, not the tribunal's subjective probation with or without an adjudication of guilt for judgment of character of the particular lawyer an Intentional Crime, the attorney shall be disbarred convicted. In short, we classify the crime, not the unless the Board of Disciplinary Appeals, under lawyer. To try to determine whether a crime is one Section 8.06, suspends his or her license to practice involving moral turpitude by attempting to distinguish law. If the attorney's license to practice law has been between la wyers of "good" character who happen to suspended during the appeal of the criminal conviction, have been convicted of a particular criminal offense, the Chief Disciplinary Counsel shall file a motion for and lawyers of "bad" character whose conviction of a final judgment of disbarment with the Board of crime is indicative of their lack of fitness to practice Disciplinary Appeals. If the motion is supported by law, would be a hopelessly confusing -- and entirely affidavits or certified copies of court documents subjective -- task. That process would also entail showing that the conviction has become final, the looking behind a conviction in a way not sanctioned by motion shall be granted without hearing, unless within the Texas Rules of Disciplinary Procedure. ten days following the service of the motion pursuant The Rules do not provide a procedure for such an to Rule 21a, Texas Rules of Civil Procedure, upon the inquiry behind the facts of the particular attorney's attorney so convicted or his or her attorney of record, conviction. To the contrary, the Rules limit a tribunal's the attorney so convicted files a verified denial inquiry to "the validity of the record of conviction, the contesting the finality of the judgment, in which event nature of the sentence, and the factual determination the Board of Disciplinary Appeals will immediately that the Respondent is the same person as the party conduct a hearing to determine the issue. If no adjudicated guilty. All attorneys convicted of Disciplinary Action is pending at the time the Intentional Crimes, as defined in Texas Rule of conviction becomes final, disbarment shall be initiated Disciplinary Procedure 1.06 (1992), are subject to by filing a Disciplinary Action. mandatory discipline." Humphreys, 880 S.W.2d 402 We first consider the State Bar's Motion to (Tex. 1994) (discussing Rule 8.04). Further, Rule 8.02 Dismiss For Want of Jurisdiction. The State Bar has provides that "the record of conviction or order of challenged our appellate jurisdiction, arguing that deferred adjudication is conclusive evidence of the BODA's order of August 25, 1993, entitled attorney's guilt." "Interlocutory Order of Suspension," is not an Considering the nature of the offense as it bears appealable order, and that a final order in this matter on the attorney's moral fitness to continue in the will not be rendered until, and only if, the appeal of practice of law represents the modern formulation of Thacker's conviction becomes final. We overrule the the moral turpitude standard, in lieu of older and far State Bar's motion and hold that classification of a more vague standards, such as "the generally accepted crime is a "determination" subject to our appellate moral code of mankind." See American Bar review. Association Model Rules of Professional Conduct 8.04 Rule 7.11 of the Texas Rules of Disciplinary cmt. 1. While we concede that even this standard does Procedure provides: "An appeal from a determination not provide a bright line of demarcation, the moral- of the Board of Disciplinary Appeals shall be to the fitness standard at least places the inquiry closer to the Supreme Court." As it is undisputed that BODA's appropriate issue of concern -- the continued fitness of decision that violation of § 25.11 is a felony involving the lawyer to practice. See Deborah L. Rhode, Moral 20 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

Character as a Professional Credential, 94 Yale L.J. "voluntary" did not mean that it was good or beyond 491, 552 (1985) (criticizing criteria that do "nothing to regulation and prohibition. Employers can no longer refine inquiry, but merely [remove] it one step from its buy labor at the lowest price they can bargain for, even announced concern [of] fitness for legal practice"). though that labor is "voluntary," or buy women's labor Considering its relationship to an attorney's moral for less money than paid to men for the same job, or fitness to practice law, we conclude that violation of purchase the agreement of children to perform §25.11 is a felony involving moral turpitude. Section oppressive labor, or purchase the agreement of workers 25.11 was adopted to deter the potentially coercive to subject themselves to unsafe or unhealthful working effect of payments to expectant mothers at a time conditions. There are, in short, values that society when the best interests of the child, and for that matter deems more important than granting to wealth the mother and father, are most likely to be whatever it can buy, be it labor, love, or life. Id. at subordinated to greed or other ulterior motives. See 1241-42 & 1249 (citations omitted). Timothy L. White, Note, Toward a Dignified Theory In this case, regardless of Thacker's motives, the of Children: Prohibition of Collaborative effect is the same: a mother was induced by the Reproduction, 19 Tex. Tech L. Rev. 1091, 1110-1111 payment of money to give up her children without (1988) (citing § 25.11 as one example of the nation protection from overreaching and without assurance wide "baby-selling acts . . . intended to address the that the children's best interest will be protected. Even potential for abuse in independent adoptions and though it is difficult to sketch a clear boundary for the specifically, as a perverse variation of independent precise limits of a lawyer's continued moral fitness to adoption, the abuse inherent in 'black market' adoptions practice, the lawyer convicted of purchase of a child of 'sold' children"). Additio nally, § 25.11 is calculated has crossed that line and forfeited her privilege to to protect the interests of the birth father, the adoptive continue the practice of law. Given the far-reaching parents, and the interests of society at large. See Avi public interests involved in such conduct, as well as the Katz, Surrogate Motherhood and the Baby Selling potentially coercive elements inherent in such acts, we Laws, 20 COL. J.L. & SOC. PROBS. 1, 10-18 (1986) conclude that the purchase of a child is a felony (discussing, among others, the interest in preventing involving moral turpitude. Therefore, we affirm blackmail, destruction of the family, and coercion). BODA's order of suspension.”153 The moral concerns attendant to the commission of this Justice Bob Gammage’s dissent is included in full crime are particularly well-expressed by the Supreme as follows: Court of New Jersey in In re Baby M, 109 N.J. 396, 537 A.2d 1227 (N.J. 1988): “I respectfully dissent. The majority of this Justice Gammage's dissent combines elements of court has managed, in derogation of its own the Rule 1.06(o) definition of "intentional" crime with rules, to establish an autocratic system of older, more ambiguous standards for assessing whether summary compulsory discipline unlike any a crime involves moral turpitude. 881 S.W.2d 307, other state, even in cases such as this where (Tex. 1994). Independent of the fact that Thacker the underlying crime is not even of the type brings no argument to this court as to the knowledge or for which an attorney must be disbarred. intent element of the 1.06(o) definition, see supra note Under our rules, an attorney must be 5, the modern formulation of moral turpitude (i.e., disbarred or have her license suspended if continued moral fitness of the lawyer to practice) does she is convicted of an "Intentional Crime." not require the inquiries urged by Justice Gammage.) Texas Rule of Disciplinary Procedure 8.01 - The evils inherent in baby-bartering are loathsome 8.06. To be classified as an "Intentional for a myriad of reasons. The child is sold without Crime," the conviction must be of a crime regard for whether the purchasers will be suitable which (1) "requires proof of knowledge or parents. The natural mother does not receive the intent as an essential element" and which (2) benefit of counseling and guidance to assist her in is a "serious crime" involving moral making a decision that may affect her for a lifetime. In turpitude. Texas Rule of Disciplinary fact, the monetary incentive to sell her child may, Procedure 1.06(o)(u). Thacker's conviction depending on her financial circumstances, make her under Texas Penal Code § 25.11 fails both decision less voluntary. Furthermore, the adoptive requirements. parents may not be fully informed of the natural parents' medical history. Baby selling potentially First, violation of Texas Penal Code § 25.11 is not a results in the exploitation of all parties involved. crime which requires proof of knowledge or intent as There are, in a civilized society, some things that an essential element. In other words, there is no mens money cannot buy. In America, we decided long ago rea requirement. See, e.g., In re Humphreys, 880 that merely because conduct purchased by money was S.W.2d 402, (Tex. 1994)(willful attempt to evade tax); 21 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

Muniz v. State, 575 S.W.2d 408, 413 (Tex. Civ. App. but must "determine whether the attorney has been Corpus Christi 1978, writ ref'd n.r.e.)(willfully, convicted of an Intentional Crime" and shall "sit, hear, knowingly and unlawfully conspiring to import and determine whether the attorney should be marijuana). Without the requirement of intent, the disciplined." Texas Rule of Disciplinary Procedure crime cannot be classified as an "Intentional Crime" 8.04. and cannot be the subject of compulsory discipline. Only if the crime is one which involves moral Texas Rule of Disciplinary Procedure 8.01. On this turpitude per se is the Board relieved of its duty to look point, I must agree with the majority that Thacker has into the circumstances surrounding the offense. waived her argument, arguing only that violation of Violation of Texas Penal Code § 25.11, however, is not Texas Penal Code § 25.11 is not a crime involving such a crime. moral turpitude. We have repeatedly defined "moral turpitude " in The majority errs, however, in concluding that the terms of the person's intent. "Moral turpitude has violation of section 25.11 is a crime involving moral been defined as anything done knowingly contrary to turpitude per se, thereby holding the Board need not justice, honesty, principle, or good morals." Muniz, 575 look past the conviction to the facts surrounding the S.W.2d at 411, citing Smith v. State, 490 S.W.2d 902, commission of the crime. Under the majority's 907 (Tex. Civ. App. -- Corpus Chr isti 1982, writ ref'd reasoning, once a conviction is established, the Board n.r.e.). "Immoral conduct is that conduct which is need never look into the circumstances surrounding the willful, flagrant, or shameless, and which shows a conviction. Instead, the Board is to "classify the crime" moral indifference..." Muniz, 575 S.W.2d at 411. in a vacuum. This analysis establishes summary "'Moral turpitude' connotes a fraudulent or dishonest disciplinary proceedings where every crime is either intent..." State Bar v. Heard, 603 S.W.2d 829, 835 one involving moral turpitude per se or not at all, (Tex. 1980). A case proclaiming that aggravated ignoring the fact that some crimes not normally assault does not involve moral turpitude per se involving moral turpitude may fit within the definition identified such crimes as "involving intentional of an "Intentional Crime" because of the nature of the dishonesty for personal gain." Turton v. State Bar, 775 particular offense. S.W.2d 712, 717 (Tex. App. -- San Antonio 1989, writ It is correct that the Board need not retry the denied). crime to determine whether the conviction is proper or To reiterate, violation of Texas Penal Code § whether the attorney is in fact guilty. Texas Rule of 25.11 does not require that the person committing the Disciplinary Procedure 8.02. Presumably, that issue offense intend to do so, much less that the intent rise to has already been proven beyond a reasonable doubt in the level of moral turpitude. n1 Because the crime a court of law. Neither must the Board hear evidence involved here is not one involving moral turpitude per concerning the attorney's character. se, I would reverse Thacker's suspension and remand The compulsory discipline rules...do not to the Board so that it may examine the facts distinguish among convicted attorneys except by the surrounding Thacker's conviction to determine nature of their crimes. Collateral or bad acts, or whether, in this case, the crime involved moral character traits not related to the record of conviction turpitude. are not at issue. In re Humphreys, 881 S.W.2d 402 The elements of "Intentional Crime" are in fact (1994).; Texas Rule of Disciplinary Procedure 8.04. intertwined. Texas Rule of Disciplinary Procedure What is necessary, however, is that the Board hear 1.06(o)(u). First, the crime must be one requiring evidence that is related to the record of conviction and intent. Texas Rule of Disciplinary Procedure 1.06(o). which bears on "the nature of their crimes" -- the Second, of those crimes, the intent of the participant question of moral turpitude. In re Humphreys, 880 must rise to such a level as to be labeled moral S.W.2d 402 (1994); See also Turton v. State Bar, 775 turpitude. Texas Rule of Disciplinary Procedure S.W.2d 712 (Tex. App. -- San Antonio, writ denied). 1.06(u); see State Bar v. Heard, 603 S.W.2d 829, 835 A final judgment convicting an attorney of a (Tex. 1980); Muniz v. State, 575 S.W.2d 408, 411 crime involving moral turpitude is cause for the (Tex. Civ. App. -- Corpus Christi 1978), writ ref'd attorney's suspension or disbarment. A plea of guilty n.r.e.); Turton v. State Bar, 775 S.W.2d 712, 717 (Tex. [or a certificate of conviction] is conclusive evidence App. -- San Antonio 1989, writ denied). of commission of the offense. It does not, however, By saying that section 25.11 does not, per se, answer the question whether his crime, or the involve moral turpitude, I do not defend the act of the circumstances of its commission, involved moral "sale or purchase of a child." Texas Penal Code § turpitude. Turton, 775 S.W.2d at 716, (quoting Searcy 25.11. I am merely stating that violation of section v. State Bar, 604 S.W.2d 256, 260 n.2 (Tex. Civ. App. 25.11, an act of strict criminal liability not even -- San Antonio 1980, writ ref'd n.r.e.). The Board is not requiring intent as an element, cannot be, per se, an act bound to discipline once a conviction is established, involving moral turpitude. The Board must hear 22 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4 evidence concerning the commission of the crime to immigration law. Therefore, courts are expecting determine if Thacker in fact violated section 25.11 with attorneys to fully and thoroughly explain options and the level of intent necessary to be classified as moral ramifications to clients to ensure that aliens, turpitude. It is possible she may have been acting in a employers, and other affected parties have the way she thought was lawful.”154 information needed to make informed choices. This expectation is landing squarely on the immigration IV. CONCLUSION attorneys shoulders because the immigration attorney The recent holdings in the cases described above, is expected to support the laws of the United States. coupled with the attempts of various government This expectation results in the immigration attorney agencies to control attorney misconduct, indicate how serving as a support mechanism for many social and important it is for immigration attorneys to thoroughly macroeconomic goals for the United States. oversee a transaction to the benefit of all affected Finally, federal and state politicians expect parties, whether known and unknown. One can nearly immigration attorneys to also act in the best interest of conclude that the client is the actual transaction itself. the United States. The complexity of world matters and Even though the Model Rules and the Texas the United States economy has made immigration Disciplinary Rules of Professional Conduct do not issues controversial. For example, nearly every specifically speak to the tremendous dual evening, one evening political news commentator, i.e. representation issues present in immigration law, a few “talking head”, mentions his dissatisfaction with H and key conclusions can be generally made. L visas. Mr. O’Reilly opines that these visas are being First, the courts are placing a higher standard of abused because companies are displacing American care on the shoulders of attorney to ensure that the all workers and hiring aliens to do the same work for a the affected parties have enough accurate information lesser salary. to make important decisions affecting their lives. Due When Treasury Secretary Snow suggested that to the nature of immigration law, with dual outsourcing of American jobs, a hot issue in the representation nearly built-in as a cornerstone of this presidential campaign, can help make the economy area of law, immigration attorneys must become expert stronger, he sparked new heat to this extremely negotiators and transaction managers, not to mention controversial topic. “"It's part of trade," Snow said. experts in immigration law. "It's one aspect of trade, and there can't be any doubt Second, courts expect the immigration attorney to about the fact that trade makes the economy stronger." act as an extension of the federal government, thus, the Snow made this statement in an interview with The immigration attorney should not be involved in any Cincinnati Enquirer. He opined that technology is fraud or misleading behavior that would violate any allowing U.S. companies to downsize and become laws of the United States. Due to the sheer volume of more efficient by linking contract workers through the immigration applications, it seems reasonable for the Internet. "You can outsource a lot of activities and get courts to expect this high level of professionalism from them done just as well, or better, at a lower cost," immigration attorneys. However, immigration Snow said during a stop here Monday. "If we can keep attorneys are depending on the information gathered the American economy strong and growing and from the client, and that information may be inaccurate expanding, we'll create lots of jobs." Snow's through no fault of the attorney. Therefore, comments on outsourcing followed remarks on the immigration attorneys should have specific procedures same subject last month by N. Gregory Mankiw, in place that ensure that the information in client’s chairman of President Bush's Council of Economic applications is correct and that no material facts have Advisers, who stirred controversy by suggesting that been omitted. Again, another statement, such as a shipping U.S. service jobs overseas could be good for “Statement of Accuracy” may be a necessary form for the economy.”155 Due to the sensitivity of this subject the client to sign, in which the client is attesting to the and of the number of jobs lost by outsourcing overseas, accurateness of the information and of the supporting these remarks made by Snow resulted in a chain e-mail documentation. Otherwise, the attorney’s only defense copied to thousands of Americans. The chain e-mail is that she trusted her client and that is unlikely to serve made a political statement and assumed that the Bush as a successful defense to a malpractice action. administration was more concerned with ensuring that Additionally, due to high probability for these margins CEO’s of companies are safe while sacrificing the of error, all immigration attorneys should carry an regular American. However, it can be argued that appropriate level of malpractice insurance. Snow was essentially arguing that outsourcing was Third, the nature of immigration law makes the basically the lesser of two evils, placing the work practice highly procedural, thus, if an alien makes a performed by immigration attorneys squarely in the mistake, the mistake cannot necessarily be easily center of this controversial political issue. corrected. There is simply no “un-do” button in 23 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

For the immigration attorney, who is basically balancing major macroeconomic issues with the microeconomic issues of the affected parties involved, finds herself in a complicated position. At the end of the day, where does the immigration attorney place the majority of her duty and loyalty? The initial answer should be in herself and in her family. However, in being helpful to the clients involved, the attorney may make errors in judgment that will come back to haunt her. The key is to consistently communicate clearly with all of the involved parties, beginning with a thorough engagement letter, and continuing with mini- contracts, such as the Statement of Understanding or Statement of Accuracy, in order to place some of the responsibility back onto the shoulders of the clients themselves. In addition, by requiring that clients sign these mini-contracts as the representation continues, the attorney also builds strong work-product evidence to present in court without completely waiving the attorney-client privilege by having to produce detailed work product as a defense. Again, there are no solutions, only defenses.

24 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

EXHIBIT A

Grievance Brochures - Notice to Clients

ENGLISH VERSION

NOTICE TO CLIENTS The State Bar of Texas investigates and prosecutes professional misconduct committed by Texas attorneys. Although not every complaint against or dispute with a lawyer involves professional misconduct, the State Bar’s Office of Chief Disciplinary Counsel will provide you with information about how to file a complaint. Please call 1-800-932-1900 toll-free for more information.

English Language Brochure.pdf

25 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

Grievance Brochures - Notice to Clients

SPANISH VERSION

NOTICIA A CLIENTES

El Colegio de Abogados investiga y procesa quejas de mala conducta profesional contra abogados con licencia en Texas. No todas las quejas o desacuerdos con un abogado implican mala conducta profesional. Sin embargo, la oficina del Jefe de Consejo Disciplinar le ofrecerá información sobre cómo presentar una queja. Para más información, favor de llamar al 1-800-932-1900. (sin costo)

http://www.texasbar.com/TemplateRedirect.cfm?template=/ContentManagement/ContentDisplay.cfm&ContentID=3 366

26 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

EXHIBIT B

GREGORY DEPAPE, Plaintiff, vs. TRINITY HEALTH SYSTEMS, INC., TRIMARK PHYSICIANS GROUP, INC., and BLUMENFELD KAPLAN & SANDWEISS, P.C., Defendants, and TRINITY HEALTH SYSTEMS, INC. and TRIMARK PHYSICIANS GROUP, INC., Third-Party Plaintiffs, vs. BLUMENFELD KAPLAN & SANDWEISS, Third- Party Defendant.

No. C01-3043-MWB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA, CENTRAL DIVISION

242 F. Supp. 2d 585; 2003 U.S. Dist. LEXIS 837

January 20, 2003, Decided

DISPOSITION: [**1] Dr. dePape entitled to recover damages from defendant Blumenfeld.

CASE SUMMARY

PROCEDURAL POSTURE: Plaintiff Canadian doctor filed suit against defendants, a consulting firm and a medical practice, alleging causes of action for promissory estoppel, breach of contract, and negligence. Defendants filed a third party action against third party-defendant law firm, alleging legal malpractice, and assuming liability, sought contribution and indemnification. The doctor amended his complaint to assert a legal malpractice claim against the law firm.

OVERVIEW: The consulting firm recruited the doctor to fill a vacancy with the medical practice in Iowa. The medical practice and the doctor entered into a five-year employment agreement. The medical practice engaged the service of the law firm to assist the doctor in obtaining a visa for lawful entry and permission to work in the United States. When the doctor attempted to cross the New York border into the United States he was denied entry into the United States. The doctor alleged that defendants were liable because they promised to secure governmental permission for him to practice medicine in the United States and to make arrangements for that permission in a correct, legal, and appropriate manner. The court held that the hope and expectation of securing the proper immigration documentation simply did not rise to the level of a "clear and definite promise" necessary to support a claim of promissory estoppel. The court also held that the doctor's breach of contract claim failed because the medical practice was not at fault for causing the break-down of the doctor's immigration process. Next, the court held that the law firm breached its duty of communicating with and advising the doctor.

OUTCOME: The court found that there was no basis to hold defendants liable for the doctor's damages. The court also found that the law firm was extraordinarily negligent in failing to inform and communicate with the doctor concerning his immigration and in counseling him to perpetrate a fraud on the INS in order to gain entry to the United States. The doctor was entitled to recover damages from the law firm for his lost income and emotional distress.

CORE TERMS: visa, united states, immigration, health care, duty, temporary, patient care, partner, legal malpractice, family physician, incidental, border, law firm, insurer, permission, teaching, advise, promissory estoppel, breached, punitive damages, eligible, promised, training, dollars, definite, alien, employment contract, certification, engagement, practice medicine

LexisNexis (TM) HEADNOTES - Core Concepts - Hide Concepts

Civil Procedure > Trials > Bench Trials Civil Procedure > Appeals > Standards of Review > Clearly Erroneous Review Civil Procedure > Appeals > Standards of Review > De Novo Review HN1Pursuant to Fed. R. Civ. P. 52, a court presiding over a bench trial is required to make findings of fact and conclusions of law. In reviewing a district court's order entering judgment after a bench trial, the court of appeals reviews the district court's factual findings for clear error and reviews its legal conclusions de novo. Fed. R. Civ. P. 52(a). Under this standard, the appellate court overturns a factual finding only if it is not supported by substantial evidence in the record, if the finding is based on an erroneous view of the law, or if the appellate court is left with the definite and firm conviction that an error has been made. In addition, a reviewing court gives due regard to the opportunity of the district court to judge the credibility of the witnesses. Fed. 27 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

R. Civ. P. 52(a). More Like This Headnote

Immigration Law > Admission > Visa Issuance Immigration Law > Immigrants > Professional, Skilled & Other Workers HN2The North American Free Trade Agreement provides for "trade national" (TN) visas for certain professionals. Only Canadian and Mexican citizens may enter the United States on TN visas. The TN law allows for the temporary entry of Canadian citizens who are physicians entering the United States in order to perform teaching and research duties, which may include "incidental patient care." Unlike the H-1B visa, Immigration and Naturalization Service interpretations of the TN visa do not recognize "dual intent" so that a pending labor certification petition or application for permanent residency disqualifies an individual from entering the United States on a TN visa. This is so because the TN visa requires a bona fide intent to remain only temporarily in the United States and to not have the intent to establish permanent residency in the United States. More Like This Headnote

Immigration Law > Admission > Visa Issuance Immigration Law > Immigrants > Professional, Skilled & Other Workers HN3The regulations promulgated in association with the "trade national" visa define "temporary entry" and provide: Temporary entry, as defined in the North American Free Trade Agreement, means entry without the intent to establish permanent residence. The alien must satisfy the inspecting immigration officer that the proposed stay is temporary. A temporary period has a reasonable, finite end that does not equate to permanent residence. In order to establish that the alien's entry will be temporary, the alien must demonstrate to the satisfaction of the inspecting immigration officer that his or her work assignment in the United States will end at a predictable time and that he or she will depart upon completion of the assignment. 8 CFR § 214.6(b). More Like This Headnote

Civil Procedure > State & Federal Interrelationships > Choice of Law HN4A federal court must apply the choice of law rules of the forum state in which it sits. Iowa law employs the "most significant relationship" test. More Like This Headnote

Contracts Law > Consideration > Promissory Estoppel HN5The essential elements of promissory estoppel are well-established. These elements are: (1) a clear and definite promise; (2) the promise was made with the promisor's clear understanding that the promisee was seeking an assurance upon which the promisee could rely and without which he would not act; (3) the promisee acted to his substantial detriment in reasonable reliance on the promise; and (4) injustice can be avoided only by enforcement of the promise. The threshold requirement is that a promise was made: In order for the doctrine of promissory estoppel to come into effect there must, of course, be a promise on which reliance may be based. More Like This Headnote

Contracts Law > Consideration > Promissory Estoppel HN6In the context of promissory estoppel, a "promise" is a declaration to do or forbear a certain specific act. A promise is "clear" when it is easily understood and is not ambiguous. A promise is "definite" when the assertion is explicit and without any doubt or tentativeness. More Like This Headnote

Contracts Law > Consideration > Promissory Estoppel HN7Under Iowa law, the party asserting the doctrine of promissory estoppel as its theory of recovery has the burden of proving this theory, and strict proof of all elements is required. More Like This Headnote

Contracts Law > Consideration > Promissory Estoppel HN8In the context of promissory estoppel, the parties' mutual agreement upon a goal does not give rise to a clear and definite promise. More Like This Headnote

Contracts Law > Breach > Causes of Action HN9In a breach-of-contract claim, the plaintiff must prove (1) the existence of a contract; (2) the terms and conditions of the contract; (3) that it has performed all the terms and conditions required under the contract; (4) the defendant's breach of the contract in some particular way; and (5) that plaintiff has suffered damages as a result of the breach. More Like This Headnote

28 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

Contracts Law > Performance > Impossibility of Performance HN10The doctrine of impossibility of performance is recognized in Iowa as an excuse for nonperformance generally where that which has been promised becomes objectively impossible to perform due to no fault of the nonperforming party. Iowa courts employ the Restatement's approach of impossibility. This approach provides for discharge of a contractual obligation when there is a supervening impracticability: Where, after a contract is made, a party's performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary. This rule recognizes that even though a party in assuming a duty has not qualified the language of the party's undertaking, the court may still relieve the party of that duty if performance has unexpectedly become imp racticable as a result of a supervening event. More Like This Headnote

Contracts Law > Performance > Discharges & Terminations Contracts Law > Breach > Causes of Action HN11In the context of a breach of contract, the doctrine of impossibility is unavailable as a defense when the party invoking the doctrine caused the events that made his or her performance impracticable. More Like This Headnote

Torts > Negligence > Negligence Generally HN12The elements of a negligence claim include the existence of a duty to conform to a standard of conduct to protect others, a failure to conform to that standard, proximate cause, and damages. Courts look to legislative enactments, prior judicial decisions, and general legal principles as a source for the existence of a duty. Ultimately, the existence of a duty is a policy decision, based on the relevant circumstances, that the law should protect a particular person from a particular type of harm. More Like This Headnote

Torts > Negligence > Duty > Duty Generally HN13The threshold determination in any negligence case is whether the defendant owed the plaintiff a duty of care. More Like This Headnote

Torts > Negligence > Duty > Duty Generally HN14A cause of action in negligence generally will not lie if the duty element of the negligence claim can be established only by resort to a contractual obligation. More Like This Headnote

Torts > Negligence > Duty > Duty Generally Contracts Law > Breach > Causes of Action HN15Under some circumstances, breach of a contractual duty may give rise to an independent action in tort. Only where a duty recognized by the law of torts exists between the plaintiff and defendant distinct from a duty imposed by the contract will a tort action lie for conduct in breach of the contract. If a relation exists which would give rise to a legal duty without enforcing the contract promise itself, the tort action will lie, otherwise not. More Like This Headnote

Torts > Malpractice Liability > Attorneys Torts > Negligence > Duty > Duty Generally HN16It is well established that an attorney-client relationship may give rise to a duty, the breach of which may be legal malpractice. In a legal malpractice case, the plaintiff must demonstrate (1) the existence of an attorney client relationship giving rise to a duty, (2) the attorney, either by an act or failure to act, violated or breached that duty, (3) the attorney's breach of duty proximately caused injury to the client, and (4) the client sustained actual injury, loss, or damage. More Like This Headnote

Torts > Malpractice Liability > Attorneys HN17The second element a plaintiff must establish in a legal malpractice suit is that the attorney breached the duty of care owed to his or her client. More Like This Headnote

Torts > Malpractice Liability > Attorneys HN18Although the Iowa Code of Professional Responsibility for Lawyers does not undertake to define standards of civil liability, it constitutes some evidence of negligence. More Like This Headnote

29 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

Torts > Malpractice Liability > Attorneys HN19The Missouri Code of Professional Conduct likewise serves as a yardstick in determining whether a lawyer breached his or her duty owed to a client. More Like This Headnote

Legal Ethics > Client Relations > Effective Representation HN20See Mo. Sup. Ct. R. 4-1.4.

Legal Ethics > Client Relations > Effective Representation HN21See Mo. Sup. Ct. R. 4-1.4 cmt.

Torts > Causation > Proximate Cause Torts > Malpractice Liability > Attorneys HN22The third element that a plaintiff must prove by the greater weight of the evidence in a legal malpractice claim is that the attorney's breach of duty proximately caused injury to the client. The burden of proving proximate cause in a legal malpractice action is the same as any other negligence action. To recover, the injured must show that, but for the attorney's negligence, the loss would not have occurred. More Like This Headnote

Contracts Law > Defenses > Unconscionability HN23See Iowa Code § 554.2302(1) (2001).

Torts > Damages > Pain & Suffering HN24Under the tort theory of negligence, there is no general duty of care to avoid causing emotional harm to another. However, where the parties assume a relationship that is contractual in nature and deals with services or acts that involve deep emotional responses in the event of a breach, Iowa courts recognize a duty of care to protect against emotional distress. More Like This Headnote

Torts > Damages > Pain & Suffering Torts > Malpractice Liability > Attorneys HN25A legal malpractice plaintiff can not recover mental distress damages in a legal malpractice action if the distress is too remote to be reasonably foreseeable. More Like This Headnote

COUNSEL: For Gregory Depape, PLAINTIFF: Lawrence L Marcucci, Marcucci & Conger, PLC, West Des Moines, IA USA.

For Trinity Health Systems Inc, Trimark Physicians Group, Inc, Trimark Physicians Corporation, DEFENDANTS: Stuart J Cochrane, Johnson, Erb, Bice, Kramer, Good & Mulholland, PC, Fort Dodge, IA USA.

For Trinity Health Systems Inc, Trimark Physicians Group, Inc, Trimark Physicians Corporation, THIRD-PARTY PLAINTIFFS: Stuart J Cochrane, Johnson, Erb, Bice, Kramer, Good & Mulholland, PC, Fort Dodge, IA USA.

For Blumenfeld, Kaplan and Sandweiss, PC, THIRD-PARTY DEFENDANT: Rosco A Ries, Jr, Whitfield & Eddy, PLC, Des Moines, IA USA.

JUDGES: MARK W. BENNETT, CHIEF JUDGE, U. S. DISTRICT COURT, NORTHERN DISTRICT OF IOWA.

OPINIONBY: MARK W. BENNETT

OPINION: [*588] MEMORANDUM OPINION AND ORDER REGARDING BENCH TRIAL ON THE MERITS

TABLE OF CONTENTS

I. INTRODUCT ION

30 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

II. FINDINGS OF FACT

III. CONCLUSIONS OF LAW

A. Count I: Promissory Estoppel

B. Count II: Breach-of-Contract

C. [**2] Count III: Negligence

D. Count IV: Legal Malpractice

1. Failure to pursue H-1B visa

2. Failure to communicate and advise a. Breach of duty

[*589] b. Causation c. Damages i. Lost income ii. Emotional distress

IV. CONCLUSION

We recognize the importance of personal contact with clients as an integral part of being a responsive firm.

-Blumenfeld, Kaplan & Sandweiss, P.C. law firm website, found at www.bks-law.com.

The plaintiff in this breach-of-contract and legal malpractice case, Dr. Gregory dePape, is a Canadian citizen who completed his medical studies and training in Canada. Thousands of miles away in the small city of Fort Dodge, Iowa, Trimark Physicians Group, Ltd. ("Trimark") sought a family physician to fill a vacancy and to meet the burgeoning needs of the Fort Dodge medical community. Through a consulting firm, Trimark successfully recruited Dr. dePape to fill this vacancy, and in March of 1999, Trimark and Dr. dePape, while still living and working in Canada, entered into a five-year employment contract.

As part of the contract negotiations process, the parties discussed immigration matters and the fact that [**3] Dr. dePape needed to obtain a visa for lawful entry and permission to work in the United States prior to beginning employment. In order to obtain such permission, Trimark engaged the services of a St. Louis, Missouri law firm, Blumenfeld, Kaplan & Sandweis s, P.C.

The facts of this case will be discussed in far more detail below in the court's Findings of Fact. By way of introduction, it suffices to say that, on June 8th, 2000, Dr. dePape, at the direction of the Blumenfeld law firm, having flown 3,000 miles from the home he was leaving in Vancouver, British Columbia, attempted to cross the Peace Bridge at the Canadian/ Buffalo, New York border into the United States on his convoluted immigration journey to begin practicing family medicine in Fort Dodge, Iowa. Dr. dePape found himself stranded at the Canadian/ United States border in shock--homeless, jobless, and temporarily possessionless. This litigation raises the question of who, if anyone, bears legal responsibility for Dr. dePape's plight.

I. INTRODUCT ION

Dr. dePape initiated this lawsuit on April 18, 2001. n1 In his original complaint, he named Trimark and Trinity Health Systems, Inc. ("Trinity") as defendants. [**4] n2 He alleged causes of action based on promissory estoppel (count I), breach of contract (count II--against Trimark only), and negligence (count III). Defendants Trinity and Trimark answered on June 6, 2001, and on October 29, 2001, they brought a third-party action against the Blumenfeld law firm. In their third party complaint, Trimark and Trinity alleged legal malpractice against the Blumenfeld law firm and, assuming liability, sought contribution and indemnification. On the eve of trial, Dr. dePape amended his complaint and likewise asserted a legal malpractice claim against Blumenfeld.

------Footnotes ------

31 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

n1 Jurisdiction is proper under 28 U.S.C. § 1332 (diversity). Dr. dePape is a Canadian citizen, both Trinity and Trimark are Iowa corporations with their principal places of business in Iowa, and Blumenfeld, Kaplan & Sandweiss, P.C. is incorporated in and has its principle place of business in Missouri. n2 Trimark is a wholly owned subsidiary of Trinity.

------End Footnotes ------A non-jury bench trial was [**5] held in this matter on November 4-7, 2002 in [*590] Des Moines, Iowa. n3 At this bench trial, the plaintiff was represented by Lawrence L. Marcucci of Marcucci & Conger, P.L.C., West Des Moines, Iowa. Defendants Trimark and Trinity were represented by Stuart J. Cochrane of Johnson, Erb, Bice, Kramer, Good & Mulholland, P.C. of Fort Dodge, Iowa. And finally, defendant Blumenfeld was represented by Rosco A. Ries, Jr. of Whitfield & Eddy, P.L.C., Des Moines, Iowa. All parties submitted post-trial briefs, which the court has duly considered. The court finds that the matter has been fully submitted and that it is now before the court for final disposition.

------Footnotes ------

n3 This is a Northern District of Iowa case, but by agreement of all the parties, the bench trial was held in a United States District Court for the Southern District of Iowa courtroom in Des Moines, Iowa.

------End Footnotes ------II. FINDINGS OF FACT

Pursuant to Federal Rule of Civil Procedure 52, HN1a court presiding over a bench trial is required to make findings of fact [**6] and conclusions of law. In reviewing a district court's order entering judgment after a bench trial, the court of appeals reviews the district court's factual findings for clear error and reviews its legal conclusions de novo. Fed. R. Civ. P. 52(a); Speer v. City of Wynne, Ark., 276 F.3d 980, 984-85 (8th Cir. 2002). "Under this standard, [the Eighth Circuit Court of Appeals] overturn[s] a factual finding only if it is not supported by substantial evidence in the record, if the finding is based on an erroneous view of the law, or if [the appellate court is] left with the definite and firm conviction that an error has been made." Estate of Davis v. Delo, 115 F.3d 1388, 1393-94 (8th Cir. 1997). In addition, a reviewing court gives due regard to the opportunity of the district court to judge the credibility of the witnesses. Id.; Fed. R. Civ. P. 52(a).

The facts in this case are not seriously in dispute--only in some instances do the parties' versions of the facts vary. In any event, the court, as the factfinder in this bench trial, did not have difficulty discerning what actually happened.

Dr. dePape is from British Columbia, Canada. [**7] He received his medical degree from the University of British Columbia in May of 1997 and completed his specialty training in family medicine at Dalhousie University in Halifax, Nova Scotia in June of 1999. He focused his medical training on rural medicine, and he hoped to practice in a small United States community as a family physician. Medical students typically begin the job search process at least one year before completing their residency training. Dr. dePape had a job offer from a clinic in Grand Forks, North Dakota, but the prospect of a long and cold North Dakota winter was daunting. Thus, he kept his options open, and he was pleased to be contacted by Dawn Hamman of Enterprise Medical Services. Ms. Hamman was a Physician Search Consultant, and Trimark had engaged her firm's services to recruit a family physician who was a good "fit" and who was willing to relocate to Fort Dodge to fill a family physician vacancy.

Through Ms. Hamman, Dr. dePape and Trimark entered into discussions in January of 1999. Trimark offered Dr. dePape a position, and contract negotiations proceeded swiftly. By March of 1999, Trimark and Dr. dePape were ready to put their agreement into writing. [**8] On March 9, 1999, Trimark and Dr. dePape entered into a five-year Professional Employment Agreement. Pursuant to this agreement, Dr. dePape would receive an annual income of $ 130,000 the first year, $ 140,000 the second year, and a percentage of his net production the following years. In addition, Trimark constructed a new office [*591] for Dr. dePape, guaranteed him an interest-free loan (up to $ 100,000) to pay his school debts, contributed to a 401 K plan on Dr. dePape's behalf, provided life insurance benefits, and agreed to pay for Dr. dePape's professional dues and licensure expenses. Not included within the terms of the Professional Employment Agreement but pertinent to this lawsuit are discussions and oral agreements relating to Dr. dePape's immigration to the United States.

During the course of the negotiations process, Jack Grandgeorge was the primary liaison between Trimark and Dr. dePape. At Trimark, Mr. Grandgeorge was a vice president and a full-time recruiter. Dr. dePape and Mr. Grandgeorge discussed

32 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4 immigration matters, and, in a March 11, 1999 memorandum, Mr. Grandgeorge confirmed in writing the "verbal promises made" to Dr. dePape. [Pf. exh. 4]. The memo indicates [**9] that, among other promises, Trimark agreed to "pay for the immigration costs" associated with Dr. dePape's immigration. [Pf. exh. 4]. In this regard, Richard Rhiner, the Senior Vice President of Trinity Health Systems, reiterated this promise in a letter to Dr. dePape, dated March 17, 1999. [Pf. exh. 8]. Mr. Rhiner's letter advises that Trinity Health Systems had engaged the services of the Blumenfeld law firm and that the costs incurred would be assumed by Trinity Health Systems.

Trinity retained the Blumenfeld law firm in April of 1999 on the advice of Ms. Hamman. Ms. Hamman recommended the Blumenfeld firm based on her prior experience with one of the firm's partners, Partner A. n4 The Blumenfeld law firm was experienced in assisting Canadian physicians to immigrate to the United States. In fact, it had been successful in the past in gaining entry to the United States on behalf of at least six other Canadian physicians using the identical strategy it ultimately employed in Dr. dePape's case. In addition, Partner A was the chief editor of a book that deals entirely with the immigration of foreign physicians to the United States --AILA's Occupational Guidebook: Immigration [**10] Options for Doctors (1995). Both Partner A and Partner B were contributing authors to this book.

------Footnotes ------

n4 Two partners at the Blumenfeld firm worked on Dr. dePape's case. The court, however, feels that it is unnecessary to reveal their identities. Instead, the individual lawyers will be referred to as Partner A and Partner B.

------End Footnotes ------It was clear to all parties that the ultimate goal in engaging the Blumenfeld firm was to obtain a "green card" for Dr. dePape so that he could remain permanently in the United States. Trimark made this goal exceedingly clear to Blumenfeld. Dr. dePape's employment contract was for five years, but both he and Trimark envisioned a long-term employment relationship. Trimark, perhaps even more so than Dr. dePape, was eager to begin the employment relationship. It constructed a new office for Dr. dePape and expended a considerable amount of money in recruiting him and paying for his visits to Fort Dodge. It viewed Dr. dePape as a "perfect fit" with its physician's group and highly anticipated [**11] his arrival.

Dr. dePape was likewise excited about beginning his career in Fort Dodge. He chose to come to the United States because he viewed the health system in this country as more patient-friendly than the Canadian system, which he testified is marked by delays in treatment. In Fort Dodge, he saw the opportunity to practice family medicine in a rural area with a group of like- minded physicians, and Dr. dePape expected to have a long, if not permanent, successful and fulfilling career with Trimark.

[*592] On April 23, 1999, one month after Trimark and Dr. dePape entered into their employment contract, Blumenfeld held an initial conference regarding its representation of Trimark and Dr. dePape. Partners A and B of the Blumenfeld firm, Mr. Rhiner, Mr. Grandgeorge, and Ms. Hutto participated in this initial conference. Notably, Blumenfeld did not advise Dr. dePape to participate, nor did it even inform him of the conference. At this conference, Blumenfeld outlined Dr. dePape's immigration options. At the time of this conference, Blumenfeld learned (1) that Dr. dePape had a five-year employment contract with Trimark; (2) that both Dr. dePape and Trimark expected an employment relationship [**12] that would endure longer than five years and, ideally, the entirety of Dr. dePape's medical career; and (3) that Dr. dePape had not taken a three-stage set of examinations, known as the USMLE's, n5 which precluded him from receiving one of the two visas available to foreign physicians--namely, the H-1B visa.

------Footnotes ------

n5 The Federation of State Medical Boards of the United States, Inc. (FSMB), and the National Board of Medical Examiners (NBME) cosponsor administration of the United States Medical Licensing Examination, or "USMLE." USMLE, . The USMLE is a three-part examination, with each part assessing different skills. "The three Steps of the USMLE assess a physician's ability to apply knowledge, concepts, and principles that are important in health and disease and that constitute the basis of safe and effective patient care." Id.

------End Footnotes ------At this initial conference, Blumenfeld advised Trimark that Dr. dePape could enter the United States on one of two visas: either an H-1B visa or a TN visa. [**13] This is so despite Blumenfeld's early

33 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4 knowledge that Dr. dePape was not eligible for an H-1B visa and despite its failure to even suggest that Dr. dePape should consider taking the USMLE's in order to become H-1B-eligible. Blumenfeld's clear focus in the initial conference and continuing throughout its representation of the plaintiff and Trimark was primarily on the H-1B visa labor certification process. Moreover, while no one who participated in the initial conference was able to recall precisely what was discussed, Blumenfeld's notes relate almost entirely to the H-1B labor certification process. [Trimark exhs. 102, 148]. The only reference to the TN visa in Blumenfeld's notes falls at their conclusion and states only Blumenfeld's fees for pursuing this visa.

After holding the initial conference, Partner A sent Mr. Rhiner an engagement letter on April 26, 1999, confirming the parties' agreement and Blumenfeld's commitment to represent Trimark and Dr. dePape throughout the immigration process. It bears repetition that it is undisputed in this litigation that Blumenfeld represented both Trimark and Dr. dePape. The engagement letter specifically states that [**14] both Trimark and Dr. dePape are Blumenfeld's clients, but Partner A sent a copy of the letter only to Trimark. Thus, Blumenfeld's pattern of failing to communicate with Dr. dePape arose from the very outset of its representation of him. The engagement letter outlines Dr. dePape's immigration options; yet Blumenfeld did not send a copy to him, nor did Blumenfeld advise Trimark to forward the engagement letter to Dr. dePape. Dr. dePape did not see the letter until preparing for this trial. In addition, the letter, like the conference, focuses on the H-1B visa and does not explain the stringent limitations of the TN visa. Indeed, the subject heading of the engagement letter is "Labor Certification Application Based Upon Request for Reduction in Recruitment for Dr. Gregory E. DePape [sic]." [Pf. exh. 9].

On April 30, 1999, Mr. Grandgeorge retired. Megan Hutto filled his position and [*593] became the primary intermediary between Dr. dePape and Trimark. Ms. Hutto's job with Trimark was her first job out of college, and by all accounts, she was extremely competent, albeit inexperienced. Her principal duty, pertinent to this case, was to facilitate communication between Trimark and Dr. [**15] dePape and to make Dr. dePape's transition to Trimark as seamless as possible.

Ms. Hutto held a bachelor's degree in Microbiology and a master's degree in Healthcare Administration. Neither she nor anyone else at Trimark had any training in immigration law. Yet, like Ms. Hutto's employer, Blumenfeld relied heavily--most times solely--on Ms. Hutto as a conduit for its communication with Dr. dePape.

It is undisputed that an H-1B visa is the preferred method of bringing a foreign physician into the United States. It is available to individuals engaged in certain enumerated specialty occupations, ranging from fashion modeling to practicing medicine. Like a TN visa, an H-1B visa is a temporary, non-immigrant visa. Temporary visas are just that--temporary. A common thread of all temporary visas is that the visa-holder must not have the intent to remain permanently in the United States. The INS, however, recognizes the concept of "dual intent" with H-1B visas. This means that, while an H-1B visa is only temporary, a pending application for permanent residency does not disqualify someone from receiving H-1B status. This is so despite the fact that, technically, an H-1B visa applicant [**16] or holder must not have the intent to remain permanently in the country. In order to perform direct patient care on an H-1B visa, the foreign physician must have successfully completed the USMLE's. In addition, the employer seeking to employ an H-1B visa-holder must petition the United States Secretary of Labor for labor certification. This process appears to be, for the most part, a game of smoke and mirrors, in which the employer, having already decided to employ a specific foreign national, places advertisements in various national newspapers in order to show that it made a good faith effort to employ a qualified United States citizen but was unable to find one. This showing is a prerequisite to receiving labor certification, and Blumenfeld wrote and published at least one job vacancy announcement on Trimark's behalf. Blumenfeld's ad intentionally emphasized the negative aspects of the job to discourage U.S. citizens from applying.

Placement of such an ad was one aspect of the services associated with the labor certification process that Blumenfeld performed and for which it charged substantial fees This is particularly troubling in light of Blumenfeld's knowledge that Dr. [**17] dePape was not eligible for an H-1B visa. Furthermore, Blumenfeld never attempted to ascertain whether Dr. dePape would complete the USMLE's, nor did it advise Dr. dePape that completion of the USMLE's was a necessary prerequisite to obtaining an H-1B visa and would be in his best interest. No one suggested to Dr. dePape that he should consider taking the USMLE's in order to become H-1B-eligible until after his failed entry attempt on June 8, 2000. Dr. dePape declined that option because he held misconceptions about the length of time that it took to complete the exams. Dr. dePape believed that the USMLE's could not be completed in fewer than two years, while Partner A and Partner B testified that the process could be completed in six to eight months. Had Blumenfeld conveyed this information to Dr. dePape, he might not have been opposed to taking them, especially if he had been advised about the USMLE process in April of 1999 because the evidence suggests that Dr. dePape could have completed [*594] the examinations before he was eligible to enter the United States under either the H-1B visa or the TN visa, as both visas required that he obtain an Iowa medical license prior to seeking [**18] entry to the United States, and Dr. dePape did not receive his Iowa license until May 31, 2000.

When Blumenfeld belatedly ascertained that Dr. dePape could not enter the country on an H-1B visa, it switched gears and began working on a TN visa. And while the TN visa option was briefly discussed at the initial conference between Trimark and Blumenfeld and reiterated in the April 26, 1999 engagement letter, Blumenfeld did not begin work on a TN visa until December of 1999. More importantly, until the fateful fiasco at the Peace Bridge on June 8, 2000, Blumenfeld never discussed the stringent requirements of a TN visa with Dr. dePape.

34 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

HN2The North American Free Trade Agreement ("NAFTA") provides for "trade national" visas for certain professionals. Only Canadian and Mexican citizens may enter the United States on TN visas. The pertinent provision of the TN law allows for the temporary entry of Canadian citizens who are physicians entering the United States in order to perform teaching and research duties, which may include "incidental patient care." Unlike the H-1B visa, INS interpretations of the TN visa do not recognize "dual intent" so that a pending labor certification petition [**19] or application for permanent residency disqualifies an individual from entering the United States on a TN visa. This is so because the TN visa requires a bona fide intent to remain only temporarily in the United States and to not have the intent to establish permanent residency in the United States. HN3The regulations promulgated in association with the TN visa define "temporary entry" and provide:

Temporary entry, as defined in the NAFTA, means entry without the intent to establish permanent residence. The alien must satisfy the inspecting immigration officer that the proposed stay is temporary. A temporary period has a reasonable, finite end that does not equate to permanent residence. In order to establish that the alien's entry will be temporary, the alien must demonstrate to the satisfaction of the inspecting immigration officer that his or her work assignment in the United States will end at a predictable time and that he or she will depart upon completion of the assignment.

8 CFR § 214.6(b).

Similarly, the NAFTA handbook n6 explains the requisite "intent" element of a TN visa: Temporary Entry-- 8 CFR 214.6(b)

------Footnotes ------

n6 The NAFTA Handbook is provided by INS Headquarters Inspections as reference material to assist immigration inspectors in processing applicants for admission as non-immigrants under the NAFTA.

------End Footnotes ------[**20]

AILA [American Immigration Lawyers' Association] suggested that the [Immigration and Naturalization] Service apply the concept of "dual intent" to the TN classification to accommodate business persons who may be adversely affected by the filing of a permanent residence petition or an application for a labor certification in their behalf. The concept of "dual intent" allows certain nonimmigrant aliens to retain nonimmigrant status even where the alien may have made application for permanent residence or where an employer has filed an application for a labor certification or employment-based petition in his or her behalf.

This suggestion cannot be adopted because it is clearly inconsistent with Article 1608 of the NAFTA. For purpose of [*595] Chapter 16 of the NAFTA, Article 1608 of the NAFTA defines "temporary entry" specifically as "entry into the territory of a Party by a business person of another Party without the intent to establish permanent residence." (Emphasis added) In order to further explain the temporary nature of a TN alien's entry into the United States, the definition of "temporary entry" has been clarified in the final rule providing that while there is no [**21] specific limit on the total period of time a citizen of Canada or Mexico may remain in TN status, the TN classification is nevertheless for persons seeking temporary entry without the intent to establish permanent residence. This clarified definition of "temporary entry" comports with that used by the Department of State and the intent of the Article 1608 of the NAFTA. See 22 CFR 41.59(c) (December 28, 1993).

United States Department of Justice Immigration & Naturalization Services, NAFTA Handbook § 1, ch. 16, Annex 1608 (1999) (citing 63 Fed. Reg. 1331, 1333 (Jan. 9, 1998)), found at 1999 WL 33438091.

When Blumenfeld began work on a TN visa for Dr. dePape, it knew that the position described in his Employment Agreement would not pass muster as an acceptable TN classification job description for two reasons. First, the TN visa is temporary, and Dr. dePape had a five year employment contract that he intended to be extended indefinitely. Second, the TN visa is available to North Americans who are coming to the United States to perform certain enumerated professional jobs, and a family physician is not one of the permissible [**22] job classifications. Physicians entering the United States on TN status are permitted to conduct research and to teach, and patient care is limited to that which is incidental to the research or teaching. Because Dr. dePape had a contract that outlasted the duration of the TN visa and was for a job that was not permitted by the visa, Blumenfeld, without consulting its clients, concocted a fictitious job title and description. Blumenfeld labeled this position "Physician Consultant" and described the duties of this position as a "community health care needs assessment." Blumenfeld did not discuss with Dr. dePape or Trimark the newly created position or the fact that Dr. dePape could not enter the United States and practice family medicine on the TN visa. Furthermore, at trial, Blumenfeld admitted that it merely "cut and pasted" the community health care needs assessment description that it had used with prior Canadian physicians into Dr. dePape's TN application letter.

35 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

According to Partner B, a community health care needs assessment is a study whereby a physician learns the demographics and the needs of a community in which he or she plans to develop a new practice by performing [**23] direct patient care. Partner A admitted at trial that he created the community health care needs assessment without consulting the hospital to determine if it was needed, if it would be beneficial, or if it would be done. Both Partner A and Partner B assumed that they "must have" exp lained the community health care needs assessment to Dr. dePape, but they were unable to produce any telephone, email, billing record, or other writing that would suggest they had done so. In fact, it would have been difficult for Blumenfeld to have explained to Dr. dePape the nuances of the community health care needs assessment and the complexities of the TN visa because Blumenfeld did not even have Dr. dePape's phone number or address on file and never once attempted to contact him. Dr. dePape initiated what little contact there was with Blumenfeld, and the entirety of their single conference took place in 1/10 of an hour. It would be impossible to explain the cerebral [*596] subtleties of the TN visa and the severe limitations that would accompany Dr. dePape's entry to the United States on this visa in six short minutes, and Partners A and B did not attempt to argue that they had done so. Moreover, the court [**24] specifically finds that they did not.

Blumenfeld had successfully used the community health care needs assessment in the past with at least six other Canadian physician TN entries. In at least five of the six prior cases, neither the foreign doctor nor the employing hospital requested the community health care needs assessment, and the evidence strongly suggests that all but one of Blumenfeld's clients never actually performed such an assessment after gaining entry. Instead, the community health care needs assessment was merely a subterfuge by which to gain entry. Once accomplished, the foreign physicians proceeded to adjust their status to permanent residents. The community health care needs assessment was solely the creation of the immigration lawyers, and they were the only ones who knew what it was. In this case, it is clear that no one at Trimark or Dr. dePape had any indication of what a community health care needs assessment entailed or how it was to be implemented; therefore, there is no way Trimark could have legitimately carried through with it. The court finds that, had Dr. dePape gained entry, a community health care needs assessment would not have been performed and [**25] that Blumenfeld did not expect that it would be.

Furthermore, even if Dr. dePape would have followed through with Blumenfeld's interpretation of a legitimate community health care needs assessment, he still would not have been in compliance with the TN law because his job as a Physician Consultant, according to Partner B, would not have interfered with his family physician duties. Partner B testified that a physician could enter the United States on a TN visa and legitimately perform his or her duties as a family physician because this patient care would enable the physician to "get a feel" for the demographics of the area. As such, Dr. dePape would have had significant direct patient care, which the TN law does not permit. Blumenfeld argued at trial that the meaning of "incidental patient care" that a TN visa-holder may perform is a grey area of the law because it is undefined in the regulations. While perhaps true, this case does not require the court to decide a case of first impression regarding the meaning of "incidental patient care" because there is no question that the level of patient care that Blumenfeld argued Dr. dePape could lawfully provide in Fort Dodge is anything [**26] but incidental.

Webster's Collegiate Dictionary defines "incidental" as "being likely to ensue as a chance or minor consequence." Merriam Webster's Collegiate Dictionary 587 (10th ed. 1995). Similarly, Princeton University's WordNet defines it as "not of prime or central importance." Princeton University, WordNet, found at . In this case, Dr. dePape and Trimark intended that, even if Dr. dePape would have performed a community health care needs assessment, the primary component of the community health care needs assessment would have been the provision of direct patient care. Because primary is antonymous with "incidental," the court concludes that Blumenfeld's version of a community health care needs assessment would not have been lawful. Instead, it was a sham article to impermissibly allow Canadian physicians entry into the United States.

The court, furthermore, finds that Blumenfeld's interpretation of the requisite "temporary entry" intent of a TN visa is similarly flawed. The regulations interpreting [*597] "temporary entry" clearly state that a TN applicant cannot possess the intent to establish residency in the [**27] United States. At trial, Partner A testified that the law permitted Dr. dePape to sign a five year employment contract with Trimark and to have the intent to immigrate to the United States and practice medicine here forever so long as, at the moment he crosses the border, he is not eligible for permanent resident status. In other words, Dr. dePape would have the requisite temporary intent until the moment INS issues him a green card because, regardless of his aspirations to become a permanent resident, he cannot realize those aspirations until INS grants him permanent resident status. Partner A described this abstract distinction as choate versus inchoate intent, and he acknowledged that there are no cases, law journals, regulations, or INS interpretive guidelines adopting this approach. The court finds that this definition is wholly unsupported by the law.

Because no one but Blumenfeld knew what a community health care needs assessment was, because the hospital did not request or need it, and because Blumenfeld's interpretation of inchoate intent is in direct contradiction of the plain language of the TN law, the court finds that the whole notion of a community health care needs [**28] assessment was a sham and a creative artifice to get Dr. dePape into the United States. Dr. dePape unquestionably had the intent to permanently immigrate to the United States, and the community health care needs assessment was solely the creation of Blumenfeld's own legal gymnastics, which had no basis in reality because Blumenfeld was the only party involved that had any an inkling of what it meant.

36 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

Furthermore, Blumenfeld's disturbing practice of exclusively using the INS office in Buffalo, New York for its Canadian TN entries bolsters the court's conclusion that the community health care needs assessment is a sham. While Partner A and Partner B testified that the INS officials at that office were more knowledgeable of the TN visa, the record reveals that Blumenfeld had one particular INS officer in mind when it chose that location. That officer was not working the day Dr. dePape attempted to enter the United States, but had he been on duty, Dr. dePape would be in Fort Dodge today. Moreover, Blumenfeld testified that it exclusively used Jim Eiss as its local counsel in Canadian entries. While in isolation this practice is not unusual or unethical, the evidence establishes that [**29] Blumenfeld used Mr. Eiss because he was a former INS agent at the Peace Bridge. The fact Blumenfeld had Dr. dePape travel 3,000 miles to enter at a port of entry where Blumenfeld's local counsel had an inside connection and where Blumenfeld knew a specific INS officer would permit entry to perform a community health care needs assessment leads to the inescapable conclusion that Blumenfeld at least suspected, if not knew, that its community health care needs assessment strategy with Canadian physicians was suspect.

The TN visa does not have an application form like most visas. Instead, a TN visa involves a United States employer writing a letter of support, describing the position to be filled. At the border, the TN applicant presents the letter, along with proof of his or her citizenship and qualifications. Partner B drafted the employer's letter describing the community health care needs assessment, forwarded it to Ms. Hutto, and instructed her to transcribe it on Trimark letterhead and to have Dr. Whitters sign it. Incredulously, Partner B testified that she assumed the community health care needs assessment was acceptable to the clients because Dr. Whitters signed the TN application [**30] letter [*598] without objecting to the job description. Dr. dePape did not see the letter, or the accompanying job description, until the day of his failed entry attempt.

The letter of support, dated May 4, 2000, describes Dr. dePape's position with Trimark as follows:

Professional Activity

Dr. dePape is coming to the United States as a Physician Consultant for Trimark Physicians Group, Inc. to conduct a community health care needs assessment. The profession of Management Consultant appears on Schedule II to Annex 1603 of the North American Free Trade Agreement

Purpose of Entry

The [Trimark Physicians] Group needs to have a community health care needs assessment conducted by a Physician who can help it assess the health care needs of the residents of its service area (Fort Dodge, Iowa) and the ways in which those needs can best be met.

The Physician in this position will be responsible for conducting a community health care needs assessment for Fort Dodge, Iowa, and the surrounding area. These activities will include meeting with small groups of residents to discuss the community's health care needs, examining existing medical facilities and equipment [**31] to determine their adequacy for meeting the community's health care needs, researching and analyzing the community's medical and health care demographics, and conducting cost analyses. This appointee will be expected to provide advice and guidance to the Group with respect to the steps it should take to better meet the health care needs of the residents of its service area, and he may engage in incidental patient care in connection with this research.

[Pf. exh. 38].

As to the duration of Dr. dePape's purported employment as a Physician Consultant, the letter states that "Dr. dePape's initial engagement with Trimark Physicians Group, Inc. will be for a duration of three months, but as noted above, we ask that Dr. dePape's TN status be approved for a period of one year, in case the project takes longer than anticipated to complete." [Pf. exh. 38]. The letter goes on to list "Dr. dePape's" qualifications and to state the monthly compensation to be paid. As is evident from the transposition of Dr. Dieppe's name where Dr. dePape' name should be, n7 Blumenfeld had used this letter and job description before, and Partners A and B admitted as much.

------Footnotes ------

n7 Blumenfeld's "cut and paste" mistakes are not limited to the two references to Dr. dePape. The TN letter concludes with a reference to Dr. MacDonald where it should read Dr. dePape--further evidence that Blumenfeld had employed the identical community health care needs assessment on prior Canadian physician TN entries.

------End Footnotes ------[**32]

37 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

Meanwhile, while Blumenfeld was billing for an H-1B visa for which Dr. dePape was not qualified and preparing its sham TN application, Dr. dePape was completing his medical training in Canada. Due to a glitch in the Iowa State Board of Medical Examiners' rules, Dr. dePape did not receive his Iowa medical license until June 1, 2000, but he became a licensed physician in Canada in July of 1999. Because he could not begin work in Fort Dodge until he obtained his Iowa license, he worked in Canada doing locum tenens, which is temporary substitution work for vacationing physicians.

When Dr. dePape learned that he would be granted his Iowa medical license, he and Trimark were finally able to set a firm start date. Trimark then worked with Blumenfeld to arrange a June 8, 2000 entry at the Peace Bridge in Buffalo, New York, which Blumenfeld chose because of [*599] its arrangement with a particular INS officer. Dr. dePape ended his lease, shipped all of his belongings and his vehicle to Fort Dodge, and terminated his locum tenens. He and his fiancée made arrangements to travel the nearly 3,000 miles from Dr. dePape's home in British Columbia to Buffalo, New York. In this regard, they [**33] flew from Vancouver to Toronto, and then rented a car to drive to Buffalo, New York. They planned to drive across the border, drop the car off at the rental station in Buffalo, and then fly to Fort Dodge, Iowa, where Dr. dePape intended to begin his new life.

When Dr. dePape arrived at the Peace Bridge on June 8, 2000, he was filled with all the hopes and expectations of living out his "American dream." He had worked his entire adult life to become a family physician, and he was on the verge of realizing this goal. He had negotiated an extraordinarily advantageous contract with Trimark that not only was financially lucrative, but also promised to provide him with a challenging and fulfilling career. He had visited Fort Dodge on two previous occasions and was eager to move to the new community and to work with the other physicians at Trimark. When Dr. dePape arrived at the Peace Bridge, he literally had nothing more than the clothes on his back.

Because the costs of accompanying Dr. dePape to his INS interview at the Peace Bridge were prohibitively high, Blumenfeld, consistent with its usual practice, retained its local immigration lawyer, Mr. Eiss, to assist Dr. dePape. Mr. [**34] Eiss met Dr. dePape at a coffee shop near the INS office in Fort Erie, Canada on the morning of June 8, 2000. There, for the first time, Dr. dePape was shown the letter describing his position as a Physician Consultant and told that he could not work in the United States as a family physician. Prior to meeting with Mr. Eiss, Dr. dePape knew the name of the visa on which he was entering the United States, and he knew that the visa was temporary--that is all he knew because that is all Blumenfeld had told him. Neither Partner A nor Partner B ever discussed with Dr. dePape the TN visa's severe limitations on direct patient care or the notion of a community health care needs assessment, nor did they send him a copy of the TN visa application letter.

In fact, the only time Dr. dePape spoke with a Blumenfeld partner directly was in March of 2000, and that conversation lasted one-tenth of one hour. During that short conversation, Partner B told Dr. dePape that he would be entering the United States on a TN visa, that this visa was temporary but easily renewable while he waited for his "green card," and that Dr. dePape would meet with Mr. Eiss before the entry to discuss the logistics [**35] of Dr. dePape's entry. Although it would have been incredibly late in the process, even in this conversation Blumenfeld failed to inform Dr. dePape that he could not come to the United States to be a family physician.

At the coffee shop on June 8, 2000, Mr. Eiss's charge was to prepare Dr. dePape for his INS interview. Mr. Eiss spent 20 minutes with Dr. dePape. During this short meeting, Mr. Eiss played the role of an immigration officer and asked Dr. dePape what he was planning on doing in the United States. Dr. dePape responded that he was going to be a family physician. Mr. Eiss shook his head and handed Dr. dePape the TN application letter. Dr. dePape was shocked, surprised, and outraged by the letter's description of his position and its temporary nature because, as far as he knew, he was permanently moving to Fort Dodge to be a doctor, not a temporary Physician Consultant doing a community health care needs assessment--something he had never heard about or even [*600] knew what it was. Dr. dePape was skeptical and concerned about the lawfulness of representing to INS that he intended to perform a community health care needs assessment and then return to Canada. However, Mr. Eiss [**36] convinced Dr. dePape that the community health care needs assessment was legal and only a mere technicality that would not impede him from practicing medicine. Hesitant but confident in the legal advice of his attorney, Dr. dePape proceeded with Mr. Eiss to the INS office to attempt Dr. dePape's entry under TN status.

There, the INS official interviewing Dr. dePape did not believe that Dr. dePape sought entry to perform a community health care needs assessment. When the INS official asked Dr. dePape directly why he was going to the United States, Dr. dePape truthfully answered that he intended to practice family medicine. Because the TN visa does not permit this, the INS official turned Dr. dePape away and sent him back to Canada. Mr. Eiss did not return with Dr. dePape to counsel him further.

Devastated and shocked by his failed entry and with no direction from Mr. Eiss or the Blumenfeld firm, Dr. dePape found a pay phone and called Ms. Hutto. She advised him to wait thirty minutes and to try to enter the United States as a visitor. If he accomplished that, she instructed him to drop the rental car off at the Buffalo airport and to fly to Fort Dodge in order to work out [**37] a "plan B." Dr. dePape and his fiancée followed Ms. Hutto's advice, but the INS officials immediately recognized Dr. dePape. The officials not only interrogated him and accused him of being a liar, they searched his car and belongings and Dr. dePape and his fiancée felt as if they were being treated like criminals. INS again denied Dr. dePape entry to the United States,

38 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4 told him not to come back, and escorted him back to Canada. Dr. dePape felt helpless, humiliated, and angry.

When that entry attempt failed, Dr. dePape was literally stranded. He had no job, no home, and no possessions--not even his medical bag. Fortunately, he had a credit card with him and, at his own expense, he and his fiancée drove back to Toronto, where they paid over two thousand U.S. dollars for last-minute plane tickets back to Vancouver. Throughout this entire ordeal, there was no backup contingency plan and no advice from Blu menfeld.

Ultimately, Dr. dePape returned to British Columbia and, in his words," re-started his life." He made several attempts to contact Trimark, but no one at Trimark returned his phone calls until August 17, 2000. On that day, Ms. Hutto implored Dr. dePape to attempt another [**38] entry in Buffalo, New York, but he refused. She then asked if he was willing to take the USMLE's, but because he labored under the impression that the exams would have taken years to complete, he refused that option as well. Instead, Dr. dePape explored his employment options in Canada and ultimately began his own private practice in October of 2001.

Shockingly, no one at Blumenfeld ever attempted to contact Dr. dePape after his failed entry attempt on June 8, 2000.

Finally, the record also reveals that Blumenfeld maintained sub-adequate communication with Trimark as well as with Dr. dePape. Dr. Whitters wrote Blumenfeld on two separate occasions to request updates as to the status of Dr. dePape's immigration. In a letter dated February 28, 2000, Dr. Whitters informed Blumenfeld that Trimark would not process further invoices until Blumenfeld provided monthly progress reports regarding Dr. dePape's visa status. [Trimark exh. 123]. This letter reiterated a January 28, 2000 [*601] letter, in which Dr. Whitters similarly requested progress reports. [Trimark exh. 119]. And while Partner B testified that she was in frequent contact with Ms. Hutto and that Blumenfeld relied on Ms. [**39] Hutto to convey information to Dr. dePape, the evidence shows that Blumenfeld did not maintain acceptable levels of contact with her either. In an email to Partner B, dated December 16, 1999, Ms. Hutto asked Partner B for an update on Dr. dePape's immigration and for information to obtain a Social Security number for him. On December 20, 1999, Partner B responded, but did not provide an update; instead, she merely informed Ms. Hutto that Dr. dePape would not be able to apply for a Social Security number until he was physically present in the United States. She notably did not provide Trimark with the requested update.

On February 17, 2001, Ms. Hutto again emailed Partner B, indicating that she had not heard from Partner B since the December 20, 2000 email. For both Trimark and Dr. dePape, the status of Dr. dePape's immigration was critical. Trimark could not schedule Dr. dePape's patients without knowing approximately when to expect Dr. dePape's arrival. The status of his immigration was particularly important to Dr. dePape because he needed to inform his Canadian employer of his separation date, as well as needing adequate time to terminate the lease of his residence in Canada, [**40] arrange for a new residence in Fort Dodge, and to ship his belongings to the United States. Blumenfeld was not forthcoming with this information and never explained to Dr. dePape, or Trimark for that matter, the immigration process, Dr. dePape's immigration options, or the significance of pursuing a TN visa.

III. CONCLUSIONS OF LAW

(Including some additional findings of fact)

The court will begin its analysis of the merits of the plaintiff's case beginning with Dr. dePape's causes of action against Trinity and Trimark. However, as a preliminary matter, the court notes that Iowa law applies to this lawsuit, which is in federal court based on diversity of citizenship. The parties do not argue that anything other than Iowa law should apply, and the court concludes that application of Iowa law to Dr. dePape's claims is warranted.

HN4A federal court must apply the choice of law rules of the forum state in which it sits--in this case, Iowa. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941). Iowa law employs the Second Restatement's "most significant relationship" test. See, e.g., Veasley v. CRST Intern., Inc., 553 N.W.2d 896, 897 (Iowa 1996) [**41] (recognizing Iowa's adoption of the "most significant relationship" test); Cameron v. Hardisty, 407 N.W.2d 595, 597 (Iowa 1987) (same); Cole v. State Auto. & Cas., Underwriters, 296 N.W.2d 779, 781-82 (Iowa 1980) (same); Berghammer v. Smith, 185 N.W.2d 226, 231 (Iowa 1971) (same). Here, the court finds that Iowa has the most significant relationship to the parties' disputes because the contractual relationships were formed in Iowa, the contract between Dr. dePape and Trimark has a choice-of-law provision, which identifies Iowa law as the governing law, the parties intended contractual performance to take place in Iowa, and Trimark and Trinity are incorporated in Iowa. See Restatement (Second) of Conflict of Laws § 188(2) (absent choice by parties, court should consider place of contracting, of negotiation, of performance, of contract's subject matter, and parties' domiciles, residences, nationalities, [*602] places of incorporation, and places of business).

A. Count I: Promissory Estoppel

Dr. dePape argues that Trimark and Trinity are liable because they promised to secure governmental permission for him to 39 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4 practice [**42] medicine in the United States and to make arrangements for that permission in a correct, legal, and appropriate manner. Because the terms of the Employment Agreement do not contain this provision, the plaintiff relies on the equitable doctrine of promissory estoppel to enforce the alleged promises. He alleges that Mr. Grandgeorge verbally promised him that Trimark would assume responsibility for successfully obtaining the appropriate immigration documentation for Dr. dePape to live and work in the United States.

HN5The essential elements of promissory estoppel are well-established. These elements are: "(1) a clear and definite promise; (2) the promise was made with the promisor's clear understanding that the promisee was seeking an assurance upon which the promisee could rely and without which he would not act; (3) the promisee acted to his substantial detriment in reasonable reliance on the promise; and (4) injustice can be avoided only by enforcement of the promise." Schoff v. Combined Ins. Co. of Am., 604 N.W.2d 43, 49 (Iowa 1999).

The threshold requirement is that a promise was made: "In order for the doctrine of promissory estoppel to come into effect there [**43] must, of course, be a promise on which reliance may be based ...." 28 Am. Jur. 2d Estoppel and Waiver § 48, at 658 (1966). The Iowa Supreme Court recently defined "clear and definite promise":

HN6A "promise" is "[a] declaration ... to do or forbear a certain specific act." Black's Law Dictionary 1213 (6th ed. 1990). A promise is "clear" when it is easily understood and is not ambiguous. See Webster's Third New International Dictionary 419 (unab. ed.1993). A promise is "definite" when the assertion is explicit and without any doubt or tentativeness. See id. at 592.

Schoff, 604 N.W.2d at 50-51.

HN7Under Iowa law, the party asserting the doctrine of promissory estoppel as its theory of recovery has the burden of proving this theory, and "strict proof of all elements is required." National Bank of Waterloo v. Moeller, 434 N.W.2d 887, 889 (Iowa 1989) (citing Pillsbury Co. v. Ward, 250 N.W.2d 35, 39 (Iowa 1977)). Therefore, here, Dr. dePape bears the burden of proving that Trimark promised to successfully secure governmental permission to practice medicine in the United States on his behalf. However, the evidence [**44] presented falls far short of proof, by any standard, of the existence of a clear and definite promise upon which promissory estoppel can be based. Therefore, Dr. dePape's promissory estoppel claim cannot lie.

Dr. dePape's assertion that Trimark promised to obtain lawful entry into the United States for Dr. dePape is entirely unsupported by the record. The record is bereft of any evidence of such a promise. Not even the plaintiff testified that Trimark and Trinity promised to do anything apart from engaging the services of a law firm and assuming the costs of his immigration expenses. Instead, it was clear from Mr. Grandgeorge's March 11, 1999 memorandum to Dr. dePape, [Pf. exh. 4], as well as from Mr. Rhiner's subsequent letter, [Pf. exh. 8], that Trimark promised to retain an immigration lawyer to assist Dr. dePape with his immigration and to pay the legal fees.

The parties clearly hoped that the immigration process would proceed smoothly and that Dr. dePape would obtain a visa. [*603] However, HN8the parties' mutual agreement upon a goal does not give rise to a clear and definite promise. See Simmons Poultry Farms, Inc. v. Dayton Road Dev't Co., 82 F.3d 217, 220-21 (8th Cir. 1996). [**45] In Simmons Poultry Farms, Inc. v. Dayton Road Development Co., the plaintiff, a turkey processor, argued that the defendant, Simmons Poultry, orally guaranteed to supply 50,000 pounds of turkey per week for processing. Id. at 220. The parties had an agreement whereby Simmons Poultry would supply the plaintiff with turkey, but Simmons Poultry argued that the 50,000 pounds figure was a goal, rather than a guarantee, that both parties hoped to achieve. Id. at 220-21. The Eighth Circuit agreed and held that the evidence supported the existence of a 50,000 goal or projection, but not an enforceable guarantee or promise. Id. at 221.

Similarly, Trimark and Dr. dePape expected that the immigration process would prove successful for Dr. dePape. Mr. Grandgeorge articulated this mutual aspiration in a separate March 11, 1999 memorandum to Dr. dePape. He stated that "hopefully things will go well with immigration and we'll see you soon during the visit to locate housing." [Pf. exh. 3] (emphasis added). The testimony presented at trial is consistent with this mutual goal. No one expected the immigration process to go sour, and both [**46] Trimark and Dr. dePape were prepared to fulfill the terms of the Employment Agreement.

The hope and expectation of securing the proper immigration documentation simply do not rise to the level of a "clear and definite promise." Trimark fulfilled the only promises it made to Dr. dePape: it retained an immigration firm and assumed the cost of all legal fees associated with Dr. dePape's immigration matters. Moreover, the court cannot conceive of any reason why Trimark would have done anything to prejudice Dr. dePape's chances of obtaining lawful entry to the United States. Probably more so than the plaintiff himself, Trimark wanted Dr. dePape to come to the United States to practice medicine with the Trimark Physicians Group. Trimark perceived the employment relationship to be a great "fit," and it did everything within its power to facilitate Dr. dePape's immigration. Because there is no evidence to support a finding of a clear and definite promise, Dr. dePape's promissory estoppel claim must fail, and the court need not discuss the remaining elements of this claim. n8

------Footnotes ------

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n8 Trimark also argued in its pre-trial and post-trial briefs that the parol evidence rule bars consideration of evidence outside the four corners of the parties' fully integrated Employment Agreement. However, because the court finds that, even when extrinsic evidence is considered, Trimark did not promise Dr. dePape to secure governmental permission for him to enter into and work in the United States, the court will not address Trimark's parol evidence argument.

------End Footnotes ------[**47]

B. Count II: Breach-of-Contract

Dr. dePape also asserts that Trimark entered into a written agreement whereby it promised, among other things, to pay compensation and other benefits to Dr. dePape and to provide him with the immediate opportunity for the development of his medical practice for a period of at least five years. [Pf. Compla int]. Dr. dePape alleges that Trimark breached this agreement, but Trimark denies this allegation on the ground that performance of the Employment Agreement was impossible in light of the fact Dr. dePape did not obtain permission to work in the United States.

HN9In a breach-of-contract claim, the plaintiff must prove:

(1) the existence of a contract; (2) the terms and conditions of the contract; (3) that it has performed all the terms and [*604] conditions required under the contract; (4) the defendant's breach of the contract in some particular way; and (5) that plaintiff has suffered damages as a result of the breach.

Molo Oil Co. v. River City Ford Truck Sales, Inc., 578 N.W.2d 222, 224 (Iowa 1998) (citing Iowa-Illinois Gas & Elec. Co. v. Black & Veatch, 497 N.W.2d 821, 825 (Iowa 1993)). [**48]

The parties do not dispute that they entered into a valid contract that would have provided Dr. dePape with the opportunity to advance his medical career. However, Trimark was not at fault for the nonperformance because Dr. dePape never gained INS permission to work in the United States. While governmental permission was not an express condition precedent to performance, Dr. dePape's availability to work was a basic assumption of both parties, and all were aware of the need to comply with federal immigration law. Dr. dePape was not available to work because he did not secure the necessary governmental permission to do so.

HN10"The doctrine of impossibility of performance is recognized in Iowa as an excuse for nonperformance generally where that which has been promised becomes objectively impossible to perform due to no fault of the nonperforming party." Nora Springs Coop. Co. v. Brandau, 247 N.W.2d 744, 747 (Iowa 1976). Iowa courts employ the Restatement's approach of impossibility. See American Soil Processing, Inc. v. Iowa Comprehensive Petroleum, 586 N.W.2d 325, 330 (Iowa 1998) (citing Restatement (Second) of Contracts § 261 (1981). This [**49] approach provides for discharge of a contractual obligation when there is a supervening impracticability:

"Where, after a contract is made, a party's performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary."

Id. (quoting Restatement (Second) of Contracts § 261). "This rule recognizes that even though a party in assuming a duty has not qualified the language of the party's undertaking, the court may still relieve the party of that duty 'if performance has unexpectedly become impracticable as a result of a supervening event.'" Id. (quoting Restatement (Second) of Contracts § 261 cmt. a, at 313).

In the comments to the Restatement, the authors opine that HN11the doctrine of impossibility is unavailable as a defense when the party invoking the doctrine caused the events that made his or her performance impracticable. Restatement (Second) of Contracts § 261 cmt. d, at 316. In his post-trial brief, the plaintiff asserts that, while the evidence is [**50] slim, the court could conclude that Trimark was at fault for Dr. dePape's failed entry and, therefore, that the doctrine of impossibility is unavailable. The court finds by the greater weight of the evidence, however, that Trimark was not at fault for causing the break-down of Dr. dePape's immigration process. Trimark did everything that the Blumenfeld firm asked of it to assist in Dr. dePape's immigration to the United States. While Dr. dePape argues that Trimark should have been more diligent in ascertaining the requirements of a TN visa, the court does not agree. Nor does the court believe that further inquiry would have impacted Trimark's actions in this case. This is so because, based on Blumenfeld's counsel, the approach Blumenfeld was taking with the TN visa was "aggressive," but legal. Under these circumstances, it cannot be said that Trimark must shoulder the blame for Dr. dePape's inability to obtain a TN visa.

41 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

[*605] The uncontroverted evidence in this case shows that Trimark acted competently and in good faith in handling Dr. dePape's immigration. Through no fault of either Trimark or Dr. dePape, Dr. dePape did not obtain a visa to enter the United States: INS made an independent [**51] determination that Dr. dePape did not qualify for a TN visa. Under these circumstances, neither party could fulfill its duty of performance under the Employment Agreement. Accordingly, Trimark is relieved of its obligation to perform. Consequently, the court finds in favor of Trimark on the plaintiff's breach-of-contract claim.

C. Count III: Negligence

In the plaintiff's third count, he alleges that both Trimark and Trinity assumed a duty to obtain governmental permission for him to practice medicine in the United States and to make the necessary arrangements for that permission in a correct, legal, and appropriate manner.

The Iowa Supreme Court has explained the general principles of a negligence claim:

HN12"The elements of a negligence claim include the existence of a duty to conform to a standard of conduct to protect others, a failure to conform to that standard, proximate cause, and damages." Marcus v. Young, 538 N.W.2d 285, 288 (Iowa 1995); see also W. Page Keaton, Prosser and Keaton on Torts § 30, at 164 (5th ed. 1984). Courts look to legislative enactments, prior judicial decisions, and general legal principles as a source [**52] for the existence of a duty. See Engstrom v. State, 461 N.W.2d 309, 315 (Iowa 1990). Our court has often relied on the Restatement (Second) of Torts "when determining whether a given defendant owes a duty to a plaintiff and the scope of that duty." Shaw v. Soo Line R.R., 463 N.W.2d 51, 55 (Iowa 1990). Ultimately, though, the existence of a duty is a policy decision, based on the relevant circumstances, that the law should protect a particular person from a particular type of harm. See Larsen v. United Fed. Sav. & Loan Ass'n, 300 N.W.2d 281, 285 (Iowa 1981).

Van Essen v. McCormick Enterprises Co., 599 N.W.2d 716, 718-19 (Iowa 1999).

HN13The threshold determination in any negligence case is whether the defendant owed the plaintiff a duty of care. Rieger v. Jacque, 584 N.W.2d 247, 250 (Iowa 1998). Here, Dr. dePape argues that Trimark and Trinity voluntarily assumed the duty to secure his entry into the United States. As part of this duty, Trimark and Trinity hired the Blumenfeld law firm, which the plaintiff then argues carried out its duties negligently. Dr. dePape seeks to impute Blumenfeld's [**53] negligence to Trinity and Trimark, arguing that Trinity and Trimark are vicariously liable. In his pre-trial and post-trial briefs, the plaintiff cites Petersen v. Farmers Casualty Co., 226 N.W.2d 226 (Iowa 1975), in support of this argument.

In Petersen, the plaintiff brought an action against his insurance company to recoup his loss allegedly resulting from the failure of the insurance company's lawyer to perfect an appeal from judgment in excess of coverage. Id. at 228. Giving rise to that case was a lawsuit against the plaintiff for an automobile accident. Id. At that time, the plaintiff was insured by a policy issued by the defendant with personal injury limits of $ 25,000. Id. Because the lawsuit against the plaintiff exceeded the policy limits, he employed his own attorney to protect his interests, but the insurance company's lawyer conducted the litigation. Id. After the jury returned a verdict against the plaintiff, the insurance company's lawyer informed him that the insurance company was going to appeal the adverse judgment. Id. Relying [*606] on this assurance, the plaintiff did not independently file an appeal. Id. [**54] However, the insurance company's lawyer did not perfect the appeal, and it, therefore, was dismissed, making the judgment against the plaintiff final. Id.

The plaintiff subsequently prevailed in a jury trial against the insurance company in which he alleged negligence. Id. The pertinent issue before the Iowa Supreme Court was whether the negligence of the insurer's attorney could be imputed to the insurer. Id. Expressly limiting its decision to the situation in which a plaintiff is denied the right to appeal by the negligence of the insurer's attorney, the Iowa court held that the attorney's negligence was imputable to the insurer. Id. at 231. The court emphasized that it "expressed no opinion as to the vicarious liability of an insurer to the insured for negligence of the insurer's attorney in the defense of a claim under the policy provisions which reserve that right to the insurer." Id.

The gravamen of the Petersen court's holding was not that the insurer's attorney was negligent in his handling of the merits of the case, trial tactics, or strategy. This duty to defend arose out of the insurance policy, and any negligence in performing [**55] that contractual obligation was not before the court. Instead, the court was presented with a situation in which the insurer, not the insured's attorney, voluntarily assumed the responsibility of appealing the adverse judgment against it and was aware of the plaintiff's reliance on that decision.

The Petersen decision is inapposite to Dr. dePape's case for two reasons. First, in Dr. dePape's case, the only duty Trinity and Trimark owed to Dr. dePape was a contractual duty--to retain a law firm to assist with Dr. dePape's immigration. Neither Trinity nor Trimark voluntarily assumed a duty to secure Dr. dePape's visa.

42 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

Second, the Petersen case involved an insurer that decided to appeal--an obligation it had no duty to undertake. It bears repeating that the insurer was held liable because it decided to appeal and then "lulled the plaintiff into a sense of security," thereby depriving the plaintiff of his opportunity to assert his legal rights. See id. at 230. Under circumstances in which the insurer's decision prejudiced the plaintiff, the Iowa court ruled that it would be unjust for the insurer to claim immunity because its lawyer negligently failed [**56] to perfect the appeal. Id. In Dr. dePape's case, Trimark and Trinity did not deprive Dr. dePape of any rights by merely retaining the Blumenfeld firm. They hired a reputable firm and reasonably relied on its legal counsel.

The court can envision a hypothetical situation that might warrant a different result. For example, suppose Dr. dePape had taken and passed the USMLE's and, thus, was qualified to enter the United States on an H-1B visa. And further suppose that the Blumenfeld firm advised Trinity and Trimark about the differences between and the feasibility of the H-1B visa and the TN visa. If, without consulting Dr. dePape, Trinity and Trimark had directed the Blumenfeld firm to pursue the TN visa, despite their knowledge of the fact that Dr. dePape's job (as described in the Employment Agreement) was not a tenable interpretation of the TN visa, it is conceivable that Trinity and Trimark could be held vicariously liable for Blumenfeld's negligence.

Nevertheless, what differentiates this hypothetical fact pattern from the facts of this case is that neither Trinity nor Trimark made such an independent and informed determination that prejudiced Dr. dePape's immigration [**57] prospects. In this case, Trinity and Trimark retained the Blumenfeld firm and reasonably relied on its legal counsel. There is no basis in law [*607] or in fact to hold Trinity and Trimark liable for Blumenfeld's negligence.

Furthermore, Trimark rightly points out in its pre-trial and post-trial briefs that HN14a cause of action in negligence generally will not lie if the duty element of the negligence claim can be established only by resort to a contractual obligation. See, e.g., Goebel v. Dean & Assocs., 91 F. Supp. 2d 1268, 1279-80 (N.D. Iowa 2000) (recognizing that not every breach of contract gives rise to a tort claim under Iowa law, but allowing negligence claim to go forward because duty existed independent of contractual obligation); Haupt v. Miller, 514 N.W.2d 905, 910 (Iowa 1994) (stating that not all contractual duties will give rise to an action in tort, but finding that an independent duty existed); Preferred Mktg. Assocs. Co. v. Hawkeye Nat'l Life Ins. Co., 452 N.W.2d 389, 397 (Iowa 1990) (rejecting negligent breach of contract claim and stating duty in tort action must be distinct from the duty imposed by the contract). In [**58] rejecting a negligent breach of contract claim, the Iowa Supreme Court explained:

We have recognized that HN15under some circumstances, breach of a contractual duty may give rise to an independent action in tort. See, e.g., Duke v. Clark, 267 N.W.2d 63, 68 (Iowa 1978) (tenant versus landlord); Giarratano v. Weitz Co., Inc., 259 Iowa 1292, 1305, 147 N.W.2d 824, 832 (1967) (employee of subcontractor versus general contractor with control over workplace and safety). We have rejected the suggestion that every breach of contract gives rise to an action in tort. See M & W Farm Serv. Co. v. Callison, 285 N.W.2d 271, 276 (Iowa 1979). Only where a duty recognized by the law of torts exists between the plaintiff and defendant distinct from a duty imposed by the contract will a tort action lie for conduct in breach of the contract. As Prosser stated:

If a relation exists which would give rise to a legal duty without enforcing the contract promise itself, the tort action will lie, otherwise not.

W. Prosser, Handbook of the Law of Torts § 33, at 205 (1st ed. 1941). See also W. Prosser, The Law of Torts § 92 (W.P. Keeton 5th ed. [**59] 1984 & Supp. 1988) (maintaining distinction); 57A Am. Jur. 2d Negligence § 119 (1989) ("Ordinarily, a breach of contract is not a tort ... [But] negligent performance of a contract may give rise to an action in tort, if the duty exists independently of the performance of the contract.") (citations omitted); Hart v. Ludwig, 347 Mich. 559, 79 N.W.2d 895 (1956) (recognizing rule); Layman v. Braunschweigische Mas chinenbauanstalt, Inc., 343 N.W.2d 334 (N.D. 1983) (same); Landwehr v. Citizens Trust Co., 110 Wis. 2d 716, 329 N.W.2d 411 (1983) (same).

Preferred Mktg., 452 N.W.2d at 397.

Here, there simply is no relationship between Dr. dePape and Trinity and Trimark that gives rise to a legal duty to obtain governmental permission for Dr. dePape to work in the United States. See Engstrom, 461 N.W.2d at 315 (listing legislative enactments, prior judicial decision, and general legal principles as sources of a duty). The only duty arises out of their contractual relationship, and that duty was not performed negligently. Therefore, a negligence claim against Trinity and Trimark is not cognizable [**60] under these circumstances; if Dr. dePape were able to recover on the theory that Trinity and Trimark assumed a duty to secure a visa for him, that cause of action would lie in contract, not in tort. Accordingly, the court finds in favor of Trinity and Trimark on Count III of Dr. dePape's complaint. n9

------Footnotes ------

n9 Because the court found in favor of Trinity and Trimark on each of the counts asserted against them, the court need not address Trinity and Trimark's third -party complaint against the Blumenfeld law firm for contribution and indemnity.

43 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

------End Footnotes ------[*608] The court addressed each of the claims in some detail because the plaintiff briefed them and because it is the court's usual practice to address all arguments raised--not because the court believed that the claims and arguments have any factual or legal basis. It should have been abundantly clear at the conclusion of discovery, if not in the initial pleading stage, that no factual or legal basis could support a valid claim against Trinity and Trimark. Each of the claims [**61] against Trinity and Trimark border on, if not exceed, Federal Rule of Civil Procedure 11 liability. However, in the absence of Trinity and Trimark seeking Rule 11 sanctions, this court declines to award them sua sponte.

D. Count IV: Legal Malpractice

The eleventh hour amendment to Dr. dePape's complaint avers that the Blumenfeld law firm was negligent in its handling of Dr. dePape's immigration. Specifically, Dr. dePape alleges that Blumenfeld breached its duty to him by "(1) failing to properly perform the immigration services; and (2) by failing to properly communicate with and advise him." [Pf. amended complaint, at P 36]. Blumenfeld, of course, denies these allegations and argues that it did not breach any duty owed to Dr. dePape. Furthermore, the firm asserts that, even if a duty were breached, there is no connection between the alleged breach and Dr. dePape's damages.

HN16It is well-established that an attorney-client relationship may give rise to a duty, the breach of which may be legal malpractice. In a legal malpractice case, the plaintiff must demonstrate:

(1) the existence of an attorney client relationship giving rise to a duty, (2) the attorney, [**62] either by an act or failure to act, violated or breached that duty, (3) the attorney's breach of duty proximately caused injury to the client, and (4) the client sustained actual injury, loss, or damage.

Ruden v. Jenk, 543 N.W.2d 605, 610 (Iowa 1996); see also Vande Kop v. McGill, 528 N.W.2d 609, 613 (Iowa 1995); Schmitz v. Crotty, 528 N.W.2d 112, 115 (Iowa 1995); Dessel v. Dessel, 431 N.W.2d 359, 361 (Iowa 1988); Burke v. Roberson, 417 N.W.2d 209, 211 (Iowa 1987); see also Kubik v. Burk, 540 N.W.2d 60, 63 (Iowa Ct. App. 1995); Benton v. Nelson, 502 N.W.2d 288, 291 (Iowa Ct. App. 1993). In this case, there is no dispute that an attorney-client relationship (the first element) existed between Dr. dePape and Blumenfeld. Blumenfeld, however, asserts that Dr. dePape cannot establish the remaining three elements of his legal malpractice claim. The court will address these elements in turn.

1. Failure to pursue H-1B visa

The court can easily dispose of Dr. dePape's first contention that Blumenfeld breached its duty of care when it failed to properly [**63] perform immigration services by failing to pursue an H-1B visa. There is no question that Dr. dePape was not eligible for an H-1B visa because he had not taken the requisite examinations--the USMLE's. There is also no question that Blumenfeld was negligent when it failed to advise Dr. dePape of the consequences of not taking the USMLE's and failed to correct his misconception about the length of time the exams took to complete.

However, the record is devoid of any evidence establishing that Dr. dePape would have taken the USMLE's and become eligible for an H-1B visa if Blumenfeld had advised him to do so. Thus, this [*609] claim fails for lack of causation. Instead, the heart of Dr. dePape's legal malpractice claim lies in his argument that Blumenfeld breached its duty to Dr. dePape by failing to communicate with and properly advise him, especially concerning the severe limitations of the TN visa.

2. Failure to communicate and advise a. Breach of duty

HN17The second element a plaintiff must establish in a legal malpractice suit is that the attorney breached the duty of care owed to his or her client. E.g., Schmitz, 528 N.W.2d at 115. Here, Dr. dePape [**64] argues that Blumenfeld owed him a duty to properly communicate with and advise him. Blumenfeld contends that it did not breach this duty and that it had, in fact, adequately counseled him. "An attorney breaches the duty of care owed to the client when the attorney fails to use 'such skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the task which [is undertaken].'" Id. (quoting Martinson Mfs. Co. v. Seery, 351 N.W.2d 772, 775 (Iowa 1984)) (alteration provided by Schmitz court). Expert testimony is generally required to establish that an attorney's conduct is negligent, but, when the negligence is so obvious that a layperson can recognize or infer it, such testimony is unnecessary. Kubik v. Burk, 540 N.W.2d 60, 64 (Iowa Ct. App. 1995) (citing Benton, 502 N.W.2d at 290) (citing Martinson Mfg. Co., 351 N.W.2d at 775)); accord Schmitz, 528 N.W.2d at 116 n. 1 (noting that expert testimony is generally required in attorney malpractice cases and that it was provided but, in hindsight, unnecessary in that case because breach [**65] of standard of care was obvious).

44 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

In this case, the plaintiff offered the deposition testimony of Bart Chavez to establish Blumenfeld's negligence. The court has reviewed Mr. Chavez's deposition, and his testimony strongly supports a finding of negligence in this case. Moreover, the court finds that Blumenfeld's breach is of the ilk that does not necessitate expert testimony because it is so obvious and outrageous that a lay person could easily recognize it without the assistance of an expert. Even in the absence of Mr. Chavez's expert testimony, which clearly identifies and articulates a standard of care that Blumenfeld failed to meet, the court is not without guidance in assessing the level of care Blumenfeld is charged with maintaining. HN18"Although the Iowa Code of Professional Responsibility for Lawyers does not undertake to define standards of civil liability, it constitutes some evidence of negligence." Ruden v. Jenk, 543 N.W.2d 605, 611 (Iowa 1996) (citing Menzel v. Morse, 362 N.W.2d 465, 471 (Iowa 1985) ("Standards of conduct and practice may be evidenced by ... the Code of Professional Responsibility for Lawyers.") (citation omitted)); [**66] accord Dessel v. Dessel, 431 N.W.2d 359, 361 (Iowa 1988) ("The 'code of professional responsibility sets the standard for an attorney's conduct in any transaction in which his professional judgment may be exercised.'") (quoting Cornell v. Wunschel, 408 N.W.2d 369, 377 (Iowa 1987)). HN19The Missouri Code of Professional Conduct likewise serves as a yardstick in determining whether a lawyer breached his or her duty owed to a client. See McRentals, Inc. v. Barber, 62 S.W.3d 684, 697 (Mo. Ct. App. 2001) ("Although violations of Rule 4-1.8(a) do not create a private cause of action for a client, the rule provides guidance in determining the fiduciary duty owed to a client by an attorney.") (citing Greening v.. Klamen, 652 S.W.2d 730, 734 (Mo. Ct. App. 1983)).

Because Partners A and B are subject to the Missouri Rules of Professional Conduct, the court will utilize them as a guidepost. n10 Accordingly, the minimum [*610] communication Blumenfeld should have maintained with Dr. dePape is as follows:

------Footnotes ------

n10 While Iowa law applies to the substantive issues presented in this case, Partners A and B are subject to Missouri's ethical code. See Mo. R. Prof'l Conduct 4-8.5. Arguably, Partners A and B were also subject to the Iowa Code of Professional Responsibility for Lawyers during their representation of Dr. dePape, Trinity, and Trimark, but this is a nettlesome question that the court need not decide because this case does not hinge on either state's particular rule governing communication requirements. Missouri follows the Model Rules of Professional Responsibility, while Iowa employs the Model Code of Professional Conduct. Iowa's code has no direct counterpart to Missouri's rule on communication. However, read together, three provisions in the Iowa Code of Professional Responsibility for La wyers encompass the same aspirations envisioned by the drafters of the rule on communication. DR 6-101(A)(3) provides that a lawyer shall not "neglect a legal matter entrusted to him." EC 7-8 states that "a lawyer should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations." Finally, EC 9-2 states that "a lawyer should fully and promptly inform his client of material developments in the matters being handled for the client."

------End Footnotes ------[**67]

4-1.4. HN20Communication

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Mo. R. Prof'l Conduct 4-1.4 (2002).

The comment on the communication rule further explains:

The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so ... Even when a client delegates authority to the lawyer, the client should be kept advised of the status of the matter. Adequacy of communication depends in part on the kind of advice or assistance involved. For example, in negotiations where there is time to explain a proposal, the lawyer should review all important provisions with the client before proceeding to an agreement. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that might [**68] injure or coerce others. On the other hand, a lawyer ordinarily cannot be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirement as to the character of representation. Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult ... Where many routine matters are involved, a system of limited or occasional reporting may be arranged

45 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4 with the client. Practical exigency may also require a lawyer to act for a client without prior consultation.

Id., at R. 4-1.4 cmt.

HN21In fact, Blumenfeld itself understands the importance of communication with its clients, and it prides itself on maintaining regular client contact. Indeed, the "letterhead" on each link of Blumenfeld's webpage advertises that Blumenfeld "recognize[s] the importance of personal contact with clients as an integral part of being a responsive firm." Blumenfeld, Kaplan & Sandweiss, P.C. law firm website, .

Here, Blumenfeld [**69] argues that Dr. dePape was adequately informed by, if nothing else, his meeting with Mr. Eiss at the [*611] Canadian/ United States border on the day of the failed entry attempt. Moreover, Blumenfeld contends that it held more conferences with Dr. dePape than it has record of. It argues that it sufficiently explained the visa application process to Dr. dePape in these undocumented conferences. The court strongly disagrees. As a finding of fact, the court finds that Blumenfeld held only one conference with Dr. dePape and that that conference lasted 1/10 of an hour. As the comment to Missouri's Rule 4.1-4 on communication indicates, "the client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so ...." Id. It would have been impossible to fulfill this duty and to inform Dr. dePape about the visa process in the six minutes Blumenfeld spoke with Dr. dePape. Furthermore, the court finds that Blumenfeld did not undertake this task during this sole conference, because the court finds that, during this conference, Partner [**70] B did not discuss substantive matters with Dr. dePape, but rather merely discussed logistical and scheduling matters of the entry attempt.

That Blumenfeld breached its duty of communicating with and advising Dr. dePape does not present the court with a close call. Because Dr. dePape had no information, he indisputably lacked sufficient information upon which to make an informed decision about his immigration. A 20 minute meeting with Mr. Eiss at the border on the morning of Dr. dePape's entry attempt, which was preceded by months of silence, did not cure Blumenfeld's failure to communicate with Dr. dePape because, by that time, it was too late for Dr. dePape to make an informed decision regarding his immigration to the United States. Moreover, the only decision Dr. dePape was ever allowed to make was the one he was faced with at the border--lie and proceed with the immigration charade or tell the truth and be rejected.

Blumenfeld also asserts that it was in frequent contact with Ms. Hutto, that it relied on her to convey information to Dr. dePape, and, therefore, that Blumenfeld sufficiently advised Dr. dePape. The evidence establishes otherwise. Not only did Blumenfeld [**71] shirk its duty of advising Dr. dePape, the record demonstrates that Blumenfeld did not maintain acceptable levels of contact with Ms. Hutto either.

Furthermore, the court is offended by Blumenfeld's attempt to place responsibility for its failure to communicate with Dr. dePape on Ms. Hutto. First, Blumenfeld's duty to its client is Blumenfeld's alone, which it admitted at trial. Second, Ms. Hutto was a recent college graduate. Despite her competence in recruiting Dr. dePape, she simply lacked any training in immigration law and, therefore, could not be expected to be qualified to inform Dr. dePape about the complex immigration process. Moreover, there is not a scintilla of evidence in the trial record that Blumenfeld instructed Ms. Hutto to pass on information from Blumenfeld to Dr. dePape. Blumenfeld merely assumed that Ms. Hutto would relay information to Dr. dePape, and Blumenfeld, furthermore, never attempted to make sure that she had followed through with this assumed charge.

While there are a myriad of ways Blumenfeld could have fulfilled its obligation to Dr. dePape, there is no question that Blumenfeld's failure to communicate at all with Dr. dePape is inadequate [**72] to meet its obligation under any conceivable option. See Mo. R. Prof'l Conduct 4-1.4. For example, Blumenfeld could have (1) sent a copy of the retention letter to Dr. dePape, (2) written Dr. dePape a follow-up letter to the initial conference explaining the requirements [*612] of the TN and the H-1B visas, (3) followed-up the written explanation with a telephone call to ensure that Dr. dePape understood the visa requirements and to answer any questions that Dr. dePape may have had, and (4) if it was not intended to be a sham, explained the community health care needs assessment to the hospital to determine if they needed or wanted it and to Dr. dePape to determine if he was ready, willing, and able to perform it. Because Blumenfeld failed to do anything to explain Dr. dePape's immigration options and their requirements and, in addition, sprung the community health care needs assessment on Dr. dePape at the border, the court finds that Blumenfeld breached its duty to communicate with and advise Dr. dePape. The court, therefore, turns next to whether Blumenfeld's breach caused Dr. dePape's alleged damages. b. Causation

HN22The third element that the plaintiff must prove [**73] by the greater weight of the evidence in a legal malpractice claim is that "the attorney's breach of duty proximately caused injury to the client." E.g., Ruden, 543 N.W.2d at 610. "The burden of proving proximate cause in a legal malpractice action is the same as any other negligence action. To recover, the injured

46 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4 must show that, but for the attorney's negligence, the loss would not have occurred." Blackhawk Bldg. Sys., Ltd. v. Law Firm of Aspelmeier, Fisch, Power, Warner & Engberg, 428 N.W.2d 288, 290 (Iowa 1988) (citing Burke v. Roberson, 417 N.W.2d 209, 211 (Iowa 1987) (citing D. Meiselman, Attorney Malpractice: Law & Procedure § 3:1, at 39-40 (1980)); R. Mallen & V. Levit, Legal Malpractice § 102, at 177-78 (2d ed. 1981)). As applied to this situation, the plaintiff must demonstrate that, but for Blumenfeld's failure to communicate with and advise Dr. dePape, Dr. dePape would have (1) gained entry to the United States or (2) would have chosen to pursue other employment options in Canada instead of attempting to immigrate to the United States.

Blumenfeld argues that the plaintiff's seemingly contradictory testimony precludes [**74] a finding that Blumenfeld's breach caused his failed entry. The plaintiff was the first witness to testify on the first day of trial. When asked whether he would have performed a community health care needs assessment if he had known that the TN visa required that he had a bona fide intent to come to the United States on a temporary basis to conduct research, he responded that he would not have. This is so because, according to Dr. dePape, he was trained to be a family physician and that is what he contracted to do in Fort Dodge.

After Dr. dePape testified on the first day of trial, Partners A and B testified as to their skewed interpretation of a TN visa's "temporary entry" requirement and the amount of patient care that could lawfully be performed alongside the community health care needs assessment. While they admitted this was an "aggressive approach," they testified that it would be permissible for Dr. dePape to enter the United States on a TN visa, despite his intent of remaining permanently and of primarily providing direct patient care as a family physician, so long as Dr. dePape's job as a family physician included a teaching or research component.

On the last day [**75] of trial and after hearing Blumenfeld's view of the community health care needs assessment for the first time, Dr. dePape took the stand again to testify. This time, Dr. dePape testified that, if Blumenfeld's interpretation of what Dr. dePape could do in the course of performing a community health care needs assessment were legal, he would have worked [*613] with Trimark to structure a position to meet immigration requirements.

The court found Dr. dePape's testimony to be credible. However, the court also finds that Blumenfeld's interpretation of what constitutes a legitimate community health care needs assessment and its interpretation of "temporary entry" are contrary to the plain meaning of the statute. Blumenfeld's "aggressive approach" to the TN law is a sham and unlawful under well- recognized immigration principles.

Dr. dePape testified that he would have performed a community health care needs assessment only after learning that it would not have interfered with his family practice, which would have been unlawful. The court concludes that, if Dr. dePape had been required to perform a legitimate TN job classification, i.e., teach or conduct a research project that only [**76] involved patient care insofar as it related to his clinical studies, he would not have come to the United States to work. Instead, he would have began his private practice or explored other employment options in Canada in lieu of doing locum tenens while waiting in vain for his immigration to be approved.

Indeed, Partner A's and Partner B's own publications undercut Blumenfeld's interpretation at trial of the level of patient care Dr. dePape would have been permitted to provide. Partner A published an article that explains this limited level of patient care in the parallel context of an H-1B visa. n11 Partner A explained that an H-1B visa-holder may "engage in patient care which [is] incidental to the teaching or research that [is] the main subject matter of [the non-immigrant's] visa status." Partner A, Present and Future Availability of the H-1B Visa for Medical Trainees, in American Immigration Lawyers Association, AILA's Occupational Guidebook: Immigration Options for Doctors, 74, 75 (1995). Partner A further noted that this limitation was a "bar to the usage of H-1 status for [foreign medical graduates] wishing to engage in training or clinical medical practice. [**77] " Id.

------Footnotes ------

n11 One provision of the H-1B visa allows for the entry and employment of foreign physicians who are entering in order to conduct research or to teach. The employer sponsoring such a physician "must establish that the alien physician ... is coming to the United States primarily to teach or conduct research, or both, at or for a public or nonprofit private educational or research institution or agency, and that no patient care will be performed, except that which is incidental to the physician's teaching or research." 8 C.F.R. § 214.2(h)(4)(viii)(B)(1). Similarly, "Foreign medical school graduates seeking temporary entry in the category of 'Physician (teaching or research only)' may not engage in direct patient care. Patient care that is incidental teaching and/ or research is permissible. Patient care is incidental when it is casually incurred in conjunction with the physician's teaching or research." United States Department of Justice Immigration & Naturalization Services, NAFTA Handbook § 1, ch. 16 (1999), found at 1999 WL 33438091

------End Footnotes ------[**78]

47 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

Similarly, Partner B described the permissible level of patient care for an H-1B non-immigrant who was involved in teaching and research, as opposed to direct patient care:

The point at which patient care ceases to be incidental is unclear. The very essence of medical education involves clinical demonstration to medical students and faculty, the [sic] language of "incidental patient care" was added as the result of Congressional directive, which implicitly recognizes that academic teaching duties by their very nature involves [sic] patient care services for teaching purposes. Prior to the availability of H-1B visas for the practice of clinical medicine, there was a strong incentive to characterize any patient care associated with teaching and research as incidental. However, with the expanded availability of H-1B visas, assuming an alien physician has the required [*614] credentials and licensure, it would be best to avoid classifying him/ her as a teacher/ researcher unless the position truly involves little or no patient care.

Partner B, H-1B Visa Considerations for Physicians, in American Immigration Lawyers Association, AILA's Occupational Guidebook: Immigration [**79] Options for Doctors, 79, 80 (1995).

Furthermore, Blumenfeld testified that Dr. dePape could have entered the United States with the requisite "temporary entry" intent if the commu nity health care needs assessment were a temporary job. Without deciding the lawfulness of this highly implausible argument, the court notes that Blumenfeld never ascertained Dr. dePape's intent, yet affirmatively represented to INS that he had only a temporary intent to remain in the country. This representation runs contrary to Dr. dePape's and Trimark's unrebutted testimony and is one of the reasons why Dr. dePape was blind-sided at the border. The letter of support seeks a one-year visa, but Dr. dePape's employment contract was for five years, and he intended to establish residency in the United States.

Therefore, because of Blumenfeld's implausible interpretation of "temporary entry" and because of its exceedingly broad interpretation of the level of patient care permissible under the TN classification, the court finds that Blumenfeld attempted to perpetrate a fraud on the INS by representing that Dr. dePape sought entry to the United States as a Physician Consultant. The court is not troubled [**80] by the change in the plaintiff's testimony because when the plaintiff testified on the first day of trial, Blumenfeld had not explained its sham interpretation of the regulations and that performance of the community health care needs assessment would not have interfered with Dr. dePape's practice. When Dr. dePape testified after Partner A and Partner B, he concluded that he would have worked with Trimark to structure a position within the meaning of Blumenfeld's interpretation of the TN classification.

This explanation is credible, but the court declines the plaintiff's invitation to award damages on this theory of recovery for the five years of his employment contract with Trimark. While Dr. dePape would have entered the country under Blumenfeld's interpretation of the law, the court finds that entry would have been unlawful, and awarding damages under these circumstances would contravene public policy. Cf. Iowa Code § 554.2302(1) (2001) (HN23"If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract ....").

However, this conclusion does not relieve Blumenfeld [**81] of liability because the court also finds that, had Dr. dePape been informed of his immigration options at the outset, he would have pursued other employment in Canada. Therefore, he would have been able to start his own practice or to begin work in an established practice as soon as he was licensed in Canada. c. Damages

Having determined that Dr. dePape established the causation element of his legal malpractice claim against Blumenfeld by the greater weight of the evidence, the court turns next to the damages, if any, suffered by Dr. dePape for which Blumenfeld is responsible. n12

------Footnotes ------

n12 The court notes that, in its post-trial brief, Blumenfeld argued that Dr. dePape failed to mitigate his damages because, after his failed entry attempt on June 8, 2000, he refused to take the USMLE's in order to become eligible for an H-1B visa or to apply for a consular visa. Because the court finds that Dr. dePape would not have chosen to work in the United States had he been advised of immigration options at the outset of Blu menfeld's engagement, Dr. dePape's refusal to take the USMLE's is irrelevant, and the court will not address that argument.

------End Footnotes ------[**82]

48 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

[*615] i. Lost income. The unrebutted testimony at trial established that Dr. dePape began a private medical practice in Canada on October 15, 2001. Blumenfeld knew as early as the initial conference between Trimark and Blumenfeld in April of 1999 that Dr. dePape had not taken the USMLE's and, therefore, that Dr. dePape's only immigration option was to enter on a TN visa. The court previously found that, had Blumenfeld explained the implications of this to him, Dr. dePape would have chosen to remain in Canada and would have started his practice as soon as possible. Based on the exhibits entered into evidence and Dr. dePape's testimony at trial, the court finds that Dr. dePape would have been qualified to open his practice in Canada in July of 1999. Therefore, Blumenfeld is responsible for the economic damages suffered by Dr. dePape beginning July 1, 1999 and ending October 15, 2001. In short, the court finds that the damages period in this case is 28.5 months.

Based on Dr. dePape's testimony that he began his practice on October 15, 2001, exhibit 28 represents 6.5 months of his private practice income. Dr. dePape earned a net income of 106,656.43 Canadian dollars in the [**83] last 6.5 months of fiscal year 2002. Therefore, Dr. dePape could have earned a net income of 467,647.38 Canadian dollars during the damages period.

Beginning in January of 1999 and continuing until October of 2001, Dr. dePape performed locum tenens in Canada. In 1999, his average monthly net income was 5,025.17 Canadian dollars. In 2000, he earned a net income of 97,456.05 Canadian dollars. And finally, during the first ten and one-half months of 2001, Dr. dePape earned a net income of 35,956.42 Canadian dollars performing locum tenens. Thus, during the damages period, Dr. dePape earned a net income of 163,563.49 Canadian dollars.

The difference between the net income Dr. dePape could have earned during the damages period and what he actually earned is 304,083.89 Canadian dollars, and Blumenfeld is liable for this lost income. Based on the average daily nominal exchange rate from July 1, 1999 through October 15, 2001, Blumenfeld is liable to Dr. dePape for 203,736.20 United States dollars in lost income. ii. Emotional distress. Dr. dePape also seeks damages for emotional distress, which "can be a proper element of damages in a tort action." Doe v. Cherwitz, 518 N.W.2d 362, 365 (Iowa 1994). [**84] HN24"Under the tort theory of negligence, there is no general duty of care to avoid causing emotional harm to another. However, where the parties assume a relationship that is contractual in nature and deals with services or acts that involve deep emotional responses in the event of a breach, [Iowa courts] recognize a duty of care to protect against emotional distress." Clark v. Estate of Rice ex rel. Rice, 653 N.W.2d 166, 171 (Iowa 2002) (citing Lawrence v. Grinde, 534 N.W.2d 414, 421 (Iowa 1995); Oswald v. LeGrand, 453 N.W.2d 634, 639 (Iowa 1990)) (internal citation omitted).

In this case, Dr. dePape shares a special relationship with Blumenfeld that gives rise to a duty to avoid causing Dr. dePape emotional harm. This is not the sort of legal malpractice case in which mental distress damages are not recoverable. See Lawrence, 534 N.W.2d at 422. In Lawrence v. Grinde, 534 N.W.2d 414, 422 [*616] (Iowa 1995), the Iowa Supreme Court held that HN25a legal malpractice plaintiff could not recover mental distress damages in his legal malpractice action because his distress was too remote to be reasonably foreseeable. [**85] There, the plaintiff's attorney failed to disclose a recent settlement on a bankruptcy petition, and the United States government subsequently indicted the plaintiff for bankruptcy fraud. Id. at 416- 17. The plaintiff was acquitted, but his indictment and trial gave rise to considerable media coverage. Id. at 417.

In that case, the mental distress damages sought were indistinguishable from the damages sought for the plaintiff's alleged damages to his reputation. Id. at 421. But because the damage to the plaintiff's reputation as a result of the indictment was one- step removed from the defendant's negligent act in preparing the bankruptcy petition, the Iowa court held that the plaintiff's claim for mental distress damages failed on causation. Id. at 422.

Here, Blumenfeld was retained to assist Dr. dePape with his immigration, but instead of assisting Dr. dePape, Blumenfeld's negligence placed Dr. dePape directly in harm's way. It should be noted that Blumenfeld would not be liable for the mental distress that might have accompanied a failed legitimate entry attempt because it would be unfair under those [**86] circumstances to hold a lawyer responsible for the independent decision of an independent governmental entity. But in this case, Blumenfeld not only failed to provide Dr. dePape with sufficient information for him to make an informed decision about his immigration, moments before the entry attempt, Blumenfeld (through Mr. Eiss) counseled Dr. dePape to lie to INS officials in order to gain entry to the United States under false pretenses.

Aside from being unethical, this conduct directly led to the INS official's decision to deny Dr. dePape's visa request and formed the basis of the INS official's accusation that Dr. dePape was a liar. The evidence presented at trial established (1) that the INS official refused Dr. dePape's entry because he believed Dr. dePape was going to practice medicine in the United States, (2) that Dr. dePape intended to enter the United States to practice medicine, (3) that Blumenfeld knew that Trimark's intent in employing Dr. dePape was to have him practice family medicine, which would not have been permissible under TN status, and (4) that despite this knowledge, Blumenfeld advised Dr. dePape to proceed to his INS interview, where he felt as if he was [**87] treated like a criminal and was accused of lying. Thus, the emotional distress damages resulting from Blumenfeld's negligence in this case are not one-step removed, and Dr. dePape may recover for them.

49 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

The court finds that, while short-lived, Dr. dePape suffered severe and intense emotional distress. He was ambushed at the United States border, asked to perpetrate a fraud on the United States government in order to gain entry, and then sent on his way without even the courtesy of a phone call from his lawyers. At the border, INS officials degraded Dr. dePape, and he felt extraordinarily humiliated. Moreover, he had spent the past fifteen months planning to begin his professional career with Trimark and had made the arrangements to do so. Because of Blumenfeld's failure to inform and communicate with Dr. dePape, his life was changed in an instant. He arrived at the Peace Bridge on June 8, 2000 hopeful and with the expectation that his American dream would finally come to fruition. He had spent ten years preparing and training to be a family physician, and, in Trimark, he found his ideal employer. But instead of being the realization of a dream, Dr. dePape endured a nightmarish [**88] experience [*617] that began that day on the Peace Bridge. Blumenfeld ambushed Dr. dePape and then left him stranded without a job, without a home, and without a life to go back to in British Columbia.

Fortunately, Dr. dePape is a person of strong character and incredible integrity. While he was setback by the emotional turmoil surrounding the ambush at the border, he was able to move on and begin anew. Accordingly, the court finds that Dr. dePape is entitled to $ 75,000 USD for emotional distress to compensate him for the severe level of mental anguish directly caused by Blumenfeld's negligence.

IV. CONCLUSION

THEREFORE, upon consideration of the evidence and the parties' arguments, the court finds (1) that there is no basis in fact or in law to hold Trinity or Trimark liable for Dr. dePape's damages; and (2) that Blumenfeld was extraordinarily negligent in failing to inform and communicate with Dr. dePape concerning his immigration and in counseling him to perpetrate a fraud on the INS in order to gain entry to the United States; and (3) that, as a result of the damages caused by this negligence, Dr. dePape is entitled to recover from defendant Blumenfeld a total [**89] of $ 278,736.20 USD for his lost income and emotional distress, exclusive of prejudgment interest, as provided for by Iowa Code § 535.3. n13

------Footnotes ------N13 The evidence in this case strongly supports an award of punitive damages against Blumenfeld. Dr. dePape was bushwhacked at the border by Blumenfeld's egregious breach of duty and its willful and wanton disregard for Dr. dePape's rights. The plaintiff did not request punitive damages in his prayer for relief, and the court recognizes its authority to award them when supported by the evidence, even in the absence of a specific prayer for punitive damages. See Boeckmann v. Joseph, 889 F.2d 1094, 1989 WL 143078, at **2 (9th Cir. Nov. 29, 1989) (table op.) (affirming district court's award of punitive damages in absence of request because plaintiff plead fraud and, therefore, the defendant was on notice because a finding of fraud supports an award of punitive damages); Scutieri v. Paige, 808 F.2d 785, 792 (11th Cir. 1987) (holding general statement of damages was reasonably construed to include punitive damages such that a specific prayer was unnecessary and failure to instruct the jury on a punitive award would be reversible error); In re Landbank Equity Corp. v. Runnels, 83 B.R. 362, 376 (E.D. Vir. 1987) ("A failure to specifically plead and demand exemplary damages will not bar an award of such damages under 54(c) where the body of the complaint alleges facts sufficient to support the award.") (citations omitted).

In Iowa, the standard for punitive damages is "Whether, by a preponderance of clear, convincing, and satisfactory evidence, the conduct of the defendant from which the claim arose constituted willful and wanton disregard for the rights or safety of another." Iowa Code § 668A.1(1)(a). The court has carefully reviewed the plaintiff's initial and amended complaints but finds that Dr. dePape did not plead sufficient facts to put Blumenfeld on notice that punitive damages were at issue. Therefore, despite the overwhelming evidence to support an award of punitive damages in this case, the court will not impose them. ------End Footnotes ------[**90] IT IS SO ORDERED. DATED this 20th day of January, 2003. MARK W. BENNETT CHIEF JUDGE, U.S. DISTRICT COURT NORTHERN DISTRICT OF IOWA Service: Get by LEXSEE® Citation: 242 F.Supp.2d 585 View: Full

Copyright © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.

50 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

EXHIBIT C Proposed Statement of Understanding

March 31, 2004

[Client Name, Address, City, State, Zip]

RE: Explanation of Possible Risks Associated with a Guilty Plea Criminal Charges: (state them) Consequences: Aggravated Felony and a Change in Your Immigration Status, including Immediate Deportation.

Dear Mr. Client:

Even though we have already spoken about these issues, I ask that you take a moment to consider your decision to plead guilty to the above-mentioned charges. I want to make sure you understand the consequences to a guilty plea, particularly in relation to your current immigration status.

To ensure that you fully understand the consequences of pleading guilty to the charges against you at this time, I ask you to read this letter and to think about what I am suggesting your risks and consequences are. Once you think about these consequences, if you still decide you want plead guilty to the charges noted, please sign below and return this letter to me.

The consequences I expect you to experience:

1. Immediate Deportation because you would be pleading guilty to an aggravated felony. 2. Prison Time - (include prison sentence) 3. Add other consequences

Very Truly Yours,

______Attorney At Law

By Signing Below, You Are Expressing Your Full Understanding of Your Risks, The Consequences You Will Likely Face, AND You Are Expressing Your Desire For Me To Continue Your Legal Representation By Representing You Through Your Guilty Plea, Unless You Tell Me Otherwise In the Space Noted Below.

_____ Yes, I still want to plead guilty to the aggravated felony I have been charged with and fully understand the consequences of this plea.

_____ No, I have changed my mind. I want to ______

Please return this form to me, after you fill it out and sign it, by April 5, 2004. Please phone me with any questions.

READ and APPROVED,

______Client Name Date

51

Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

EXHIBIT D

MADELINE CLOSE, Plaintiff and Respondent, v. COMPUTEC INTERNATIONAL RESOURCES, INC., Defendant and Appellant.

B160800

COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION ONE

2004 Cal. App. Unpub. LEXIS 705

January 27, 2004, Filed

NOTICE: [*1] NOT TO BE PUBLISHED IN OFFICIAL REPORTS CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 977.

PRIOR HISTORY: APPEAL from a judgment of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. BC237755. Jane L. Johnson, Judge.

DISPOSITION: Modified and affirmed.

CORE TERMS: visa, employment agreement, salary, substantial evidence, relocation, one year, prejudgment interest, promissory estoppel, written agreement, unambiguous, contacted, analyst, italics, causes of action, general verdict, fair dealing, programming, effective, covenant, modified, skills, worry, hear, contract interpretation, theory of recovery, postcontract, precontract, integration clause, breach of contract, computer systems

COUNSEL: Ballard, Rosenberg, Golper & Savitt, Richard S. Rosenberg and John J. Manier for Defendant and Appellant.

Irsfeld, Irsfeld & Younger and Peter C. Wright for Plaintiff and Respondent.

JUDGES: MALLANO, J. We concur: SPENCER, P. J., ORTEGA, J.

OPINIONBY: MALLANO

OPINION: Defendant executed a written contract to employ plaintiff for one year but never gave her a job. She filed this action for breach of contract. The jury found in her favor and awarded $ 102,000 in damages.

On appeal, defendant argues that the verdict is not supported by substantial evidence, and the damages award is excessive. We conclude that substantial evidence supports the verdict, but the damages award should be reduced to $ [*2] 98,000, the amount stated in the contract.

I

BACKGROUND

Plaintiff Madeline Close, who is a citizen of Britain, New Zealand, and Ireland, resides in England. In 1987, after taking a computer training course, she worked at Wessex Regional Health Authority as a computer programmer. There, one year later, she assumed the duties of an analyst programmer.

In 1990, Close went to work for Southern Electric, a utility company. She started as an analyst programmer and, after a short time, became a business analyst. In that position, she had to, in her own words, "take the needs and the requirements of the business and translate them into . . . something that the technical people can understand to build the software from." Close worked for Southern Electric for six years.

Beginning in March 1997, Close worked for a series of electric companies on a contract basis, namely, the Electricity Pool of England and Wales, followed by Scottish Hydroelectric, and finally London Electricity. At Scottish Hydroelectric, she was paid around £ 300, or $ 600 a day. During this time, Close was taking classes at Open University, where she eventually received a 53 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

Bachelor of Science degree [*3] in mathematics and computing.

At that time, defendant Computec International Resources, Inc. (Computec), was based in Glendale, California, and provided consulting, analysis, design, and programming services primarily to Fortune 100 companies with IBM mainframe and mid-range environments. Its clients included American Express, Anderson Consulting, Avnet, Inc., IBM, and Pac Bell. Computec had affiliated offices in Sydney, Australia, and London, England. n1

------Footnotes ------

n1 At some point, Computec was renamed Compuware Corporation. We will refer to the company as Computec, the name appearing in the complaint.

------End Footnotes ------

In March 1997, Co mputec contacted Close, arranged for an informal interview at a London hotel, and provided her with a list of job skills for positions in the United States. A senior sales executive of Computec, Mike Williams, told Close that one of the company's clients, IBM, wanted to interview her. IBM was looking for a "functional architect," which Close understood to mean a business analyst. Williams explained that, [*4] if hired, Close would be an employee of Computec under a "contract to hire" working at IBM for one year. She would be based in Dallas, Texas. Computec would be responsible for hiring, paying, and, if necessary, firing her. It would also handle the paperwork to obtain a work visa for her and would cover her relocation expenses.

Close was interviewed by IBM. Afterward, Williams offered her a job. Several days later, she declined the offer because she wanted to finish her degree, and she had just started working for the Electricity Pool of England and Wales. n2

------Footnotes ------

n2 Close's vision is substantially impaired. She suffers from an eye disease that causes degeneration of the retina. To read, she must use a magnifying device. Eventually she may go blind. IBM was willing to accommodate Close's condition.

------End Footnotes ------

In December 1997, Williams contacted Close again about a position with IBM. This time, she was seriously interested. Recruiters from IBM interviewed her by telephone. Williams offered her the position. She accepted it. [*5]

By letter dated January 6, 1998, bearing Computec's letterhead and mailed from its London office, Close received a six-page employment agreement and was asked to sign and return it. The top of the letter bore the notation "Re: IBM, USA." The letter also requested that Close provide Computec with copies of the documents needed to complete her visa application. The letter concluded, "May we take this opportunity to welcome you to Computec and wish you every success in your move to the USA. . . ." Close knew that she could not work legally in the United States until she obtained a visa.

On January 9, 1998, Computec sent Close a relocation guide with information concerning her move to the United States. As before, the material came from Computec's London office and bore the notation "Re: IBM, USA." After reading the guide, Close had some questions about the job and relocation. She sought additional information in a January 13, 1998 letter addressed to Computec's London office. She received more material at the end of January or beginning of February and spent about one week reviewing it.

Close read the employment agreement, which was written on Computec letterhead. The agreement [*6] stated at the top of the first page, "This EMPLOYMENT AGREEMENT is made and entered into this 5th day of January 1998 by and between Computec International Resources, Inc., a California Corporation (the 'Company') and Madeline Close (the 'Employee')." Also on the first page, Computec agreed to employ Close to "provide computer systems and/or computer programming services exclusively to the Company, or at the direction of the Company to clients or customers of the Company . . . ." Similarly, another provision stated that Close would work at Computec's location in Glendale or at the office of one of its clients.

The length of Close's employment was set forth in a schedule attached to the employment agreement, stating, "Services under this Schedule shall be performed commencing March 1998 for an initial period of 52 weeks." The length of employment could be extended by mutual agreement. Close was to be paid a "salary [of] $ 98,000 per year, equating to [the] rate of $ 47.12 per hour based on a 40 hour/52 week year." Computec was obligated to "pay the Employee a salary at the rate specified . . . for the

54 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4 number of hours, whether basic or additional, worked by the Employee."

Further, [*7] either party to the agreement was "entitled to terminate [it] upon giving not less than fifteen (15) business days' written notice of termination at any time." An integration clause provided that "this Agreement and Schedule constitute the entire Agreement between the parties pertaining to the subject matter contained in them and supersedes any and all prior or contemporaneous agreements, representations and understandings of the parties." The agreement also stated that "no supplement, modification or amendment of or to this Agreement shall be binding unless executed in writing by both parties."

Close signed the agreement in duplicate and returned it in March 1998. She provided the visa documents at about the same time. She did not respond earlier, at least in part, because Computec had not yet answered all of her questions about the job and relocation. Computec had told Close to submit the papers as soon as she could, which, as Close testified, she did. At some point, Computec sent Close a fully executed employment agreement, bearing the signature of the company's chief operating officer.

By letter dated April 21, 1998, Computec informed Close that the United States Immigration [*8] and Naturalization Service (INS) had received her visa petition on April 14. According to the letter, the INS had indicated that it usually took 21 to 30 days to process a petition. Computec "strongly advised" Close "not [to] make major life changes (such as resigning from your present employment, selling your house, etc.) until [she] received word that the petition had been approved." The letter ended: "Computec will let you know as soon as we hear from the INS that your petition has been processed. In the meantime, you can expect to hear from someone in our Relocation Department within the next few weeks to discuss your relocation needs." Williams told Close that they would "sort out a start date" after she obtained a visa. Once she got the visa, she would begin work.

As of June 7, 1998, Close had not heard from Computec about the visa petition. On that day, she faxed a letter to Williams, expressing her "disappointment that Computec [has] not kept me informed about what is happening regarding my visa application. . . . [P] . . . My current contract with London Electricity is due to end on June 30th. I have been offered an extension on more money. I need to know if I am [*9] still going to America and approximately when."

Williams replied to the fax, telling Close not to worry, the visa petition was taking longer to process than expected, and she should extend her contract with London Electricity but insist on a 30-day "'get out'" clause. London Electricity extended Close's contract to November 30, 1998, and made it terminable on 30 days' notice. Williams said the notice provision would not create a problem because, after Close obtained a visa, it would take about one month to complete the relocation process.

In September 1998, Close learned that her visa petition had been approved, effective October 1, 1998, to October 1, 2000. She expected to hear from Computec about her job in the United States but heard nothing. She contacted Williams and was told the IBM position was no longer available because a couple of IBM's projects had been canceled, and IBM's job requirements had changed. He told her not to worry, explaining that Computec had 38 different utility companies as clients, some of which were looking for employees, and she had good skills and a visa. Williams said he was confident that Computec would find her a job before Christmas 1998.

In the [*10] meantime, Close was honing her skills through her work in England, and she received her degree. She asked Williams for an increase in salary. He orally agreed and offered her $ 102,000.

On November 12, 1998, Close sent Williams an e-mail, indicating that she had only 12 working days left with London Electricity and wanted to know as soon as possible about her prospects in the United States. He replied by e-mail, saying he had a new list of utility companies to contact. He also mentioned a possible job with Southern California Edison. In a subsequent telephone conversation, Williams said that things were moving slowly and that Close probably would not be moving to the United States before Christmas. Williams was still confident that Computec would find her a job.

In January 1999, Close left voicemail messages for Williams, asking if he had heard anything. Williams did not return her calls. In fact, she never heard from him or Computec again. Computec never gave written or oral notice that it was terminating the employment agreement. According to Close, she was ready, willing, and able to work for Computec from the time she executed the agreement through January 1999.

By the end of [*11] January 1999, Close concluded that she had to search for jobs on her own. She used the Internet to post 500 resumes. She contacted recruitment agencies by telephone. She targeted utility companies, electricity companies, telecoms, gas companies, and water companies.

In April 1999, Close received an offer to work for the Irish Electricity Supply Board. The position did not start until June. Close accepted the job and commenced employment on June 23, 1999. Thus, she was unemployed from December 1, 1998, to June 23, 1999.

On September 29, 2000, Close filed this action against Computec, alleging a cause of action for breach of the employment

55 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4 agreement. The case proceeded to trial by jury on April 15, 2002. After her case-in-chief, Close moved to amend the complaint according to proof, seeking to add causes of action for breach of the covenant of good faith and fair dealing and promissory estoppel. The trial court granted the motion. Computec rested without calling any witnesses. Then, Close took the stand and testified briefly. The jury deliberated and returned a general verdict in Close's favor, awarding her $ 102,000 in damages and $ 10,200 in prejudgment interest for one year.

On [*12] June 11, 2002, the trial court entered judgment on the verdict. Computec brought motions for judgment notwithstanding the verdict and new trial, which were denied. Computec filed a timely notice of appeal.

II

DISCUSSION

The case was submitted to the jury on three causes of action: breach of the employment agreement (as written and orally modified), breach of the covenant of good faith and fair dealing, and promissory estoppel. Computec contends that the verdict is not supported by substantial evidence. Our review of the record shows otherwise.

Computec further contends that the award of $ 102,000 in damages is excessive because the written agreement stated that Close would be paid $ 98,000. With that we agree.

A. Substantial Evidence

"[Under] the 'general verdict rule,' it is unnecessary to determine whether every count or theory of recovery is legally valid and supports the general verdict, but only whether any one such theory is valid and supports that verdict. . . . 'In other words, we must affirm the judgment if we determine there is any theory of recovery which supports the judgment. . . .'" (Travaglione v. Billings (1993) 4 Cal.4th 1150, 1155, [*13] italics in original; see id. at p. 1157; accord, Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 673, 117 Cal. Rptr. 1.) This rule applies here because substantial evidence supports liability for breach of the written employment agreement.

In determining whether Computec breached the agreement, "we apply the ordinary rules of contract interpretation. 'Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interpretation. . . . Such intent is to be inferred, if possible, solely from the written provisions of the contract. . . . The "clear and explicit" meaning of these provisions, interpreted in their "ordinary and popular sense," unless "used by the parties in a technical sense or a special meaning is given to them by usage" . . ., controls judicial interpretation. . . . Thus, if the meaning a layperson would ascribe to contract language is not ambiguous, we apply that meaning. . . .'" (Santisas v. Goodin (1998) 17 Cal.4th 599, 608, citations omitted.)

Under the substantial evidence test, "'the power of the appellate court begins and ends with a determination [*14] as to whether there is any substantial evidence, contradicted or uncontradicted,' to support the trial court's findings. . . . We must therefore view the evidence in the light most favorable to the prevailing party, giving [her] the benefit of every reasonable inference and resolving all conflicts in [her] favor . . . ." (Estate of Leslie (1984) 37 Cal.3d 186, 201, 207 Cal. Rptr. 561, citations omitted.)

"The focus is on the quality, not the quantity of the evidence. Very little solid evidence may be 'substantial,' while a lot of extremely weak evidence might be 'insubstantial.'" (Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal. App. 3d 864, 871-872, 269 Cal. Rptr. 647.) The testimony of a single witness may constitute substantial evidence. (In re Marriage of Birnbaum (1989) 211 Cal. App. 3d 1508, 1513, 260 Cal. Rptr. 210.)

"Trial court findings must be supported by substantial evidence on the record taken as a whole. Substantial evidence is not [literally] any evidence - it must be reasonable in nature, credible, and of solid value." (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 51.) [*15] Thus, "it is not our task to weigh conflicts and disputes in the evidence; that is the province of the trial court." (Grappo v. Coventry Financial Corp. (1991) 235 Cal. App. 3d 496, 507, 286 Cal. Rptr. 714.)

In an effort to prevent Close from relying on any oral modification of the written employment agreement -- through precontract or postcontract communications -- Computec argues that precontract statements are barred by the agreement's integration clause (see Code Civ. Proc., § 1856; Slivinsky v. Watkins-Johnson Co. (1990) 221 Cal. App. 3d 799, 804-805, 270 Cal. Rptr. 585), and postcontract statements are precluded by the contractual provision requiring that all modifications be in writing and signed by the parties (see Civ. Code, § 1698; Haggard v. Kimberly Quality Care, Inc. (1995) 39 Cal.App.4th 508, 521).

In arguing against the admission of parol evidence, Computec falls victim to the familiar adage, "Be careful what you wish for, you might just get it." Computec's defense of the claim for breach of the written agreement rests on evidence outside the four corners of the agreement. In particular, Computec asserts that it [*16] could not employ Close beginning in March 1998 -- the

56 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4 date specified in the agreement -- because she did not have a visa, nor could it employ her when the visa was obtained -- effective October 1, 1998 -- because the IBM position was no longer available and Computec had no open positions.

But the written agreement did not say anything about IBM, the availability of jobs, or the necessity of a visa, other than Computec's obligation to pay "visa costs." The agreement stated in no uncertain terms that Computec would employ Close "commencing March 1998 for an initial period of 52 weeks." According to the agreement, Close was to "provide computer systems and/or computer programming services exclusively to the Company [(meaning Computec)] or at the direction of the Company to clients or customers of the Company . . . ." The agreement did not even indicate the country in which Close would work. Consistent with the unambiguous provisions of the agreement, Computec had to provide Close with employment effective March 1998 -- a job she could begin at that time. It did not do so.

Computec emphasizes that the agreement permitted termination on 15 business days' written notice by either party. [*17] But Co mputec never notified Close that it was terminating the agreement, orally or in writing. Further, Computec argues that, even with a visa, Close was unable to begin work in 1998 because she was then employed by London Electricity. Not so. Close testified at trial that from the time she executed the employment agreement to January 1999, she was ready, willing, and able to work for Computec. And her contract with London Electricity contained a termination notice provision -- as Williams instructed -- permitting her to terminate the contract on 30 days' notice, which would give her the necessary one-month period to relocate to the United States.

Even assuming that the March 1998 start date and the necessity of a visa were material terms of the employment agreement, Computec waived the right to enforce them. "'Generally, "waiver" denotes the voluntary relinquishment of a known right. . . .'" (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 983.)

Computec's waiver consisted of Williams's statement to Close that Computec would "sort out a start date" after she obtained a visa and that, once she got the visa, she would begin work. In a letter dated [*18] April 21, 1998, Computec notified Close that her visa petition was being processed and that someone would contact her in the following weeks to discuss relocation. Later, Williams told Close not to worry about the job, the visa petition was taking longer to process than expected, but Computec would find her a position before Christmas 1998.

Finally, Computec contends that liability is precluded as a matter of law because the employment agreement required that Close be paid only for the "number of hours" worked, and she did not work at all. This contention borders on the frivolous. Computec's breach of the agreement excused Close's performance. (See 1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, § 797, pp. 719-720.)

B. Amount of Damages

On the breach of contract claim, Close is entitled to the salary stated in the employment agreement, namely, $ 98,000. Williams's oral promise to pay $ 102,000, made after the execution of the agreement, is not enforceable. (See Civ. Code, § 1698; Haggard v. Kimberly Quality Care, Inc., supra, 39 Cal.App.4th at p. 521.)

Nor can the salary increase be sustained under the other causes of action. The covenant [*19] of good faith and fair dealing cannot be used to vary the express terms of a written agreement. (See Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 374-376.)

And the promissory estoppel claim requires a showing that Close relied on the increased salary to her detriment. (See Smith v. City and County of San Francisco (1990) 225 Cal. App. 3d 38, 47-48, 275 Cal. Rptr. 17; Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 249-250, 74 Cal. Rptr. 398; 1 Witkin, Summary of Cal. Law, supra, Contracts, §§ 249-250, pp. 251-252.) Close testified that, because Williams agreed to increase her salary by $ 4,000, she decided to "hang on," waiting for a job from Computec. But she did not establish that her reliance was detrimental. Indeed, she was working at the time for London Electricity and would continue to do so -- as best we can tell -- for at least another month. n3

------Footnotes ------

n3 Computec asserts that the jury instruction on promissory estoppel was erroneous because it did not require Close to prove injury, nor did it state that the promise had to be clear and unambiguous. As to the first point, the instruction was preceded and followed by the requisite instructions on damages. With respect to the second point, assuming for the sake of argument that the promise had to be clear and unambiguous, the trial court's failure to so instruct was not prejudicia l. (See Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.) The promise here -- to employ Close for one year at a salary of $ 98,000 -- was clear and unambiguous as a matter of law.

57 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

------End Footnotes ------[*20]

Computec correctly points out that, under the agreement, Close was to be paid $ 98,000 for one year, and she was unemployed for only seven months, from December 1, 1998, to June 23, 1999. On the latter date, she commenced work at the

Irish Electricity Supply Board. It follows, Computec contends, that Close cannot recover more than what she would have earned under the agreement in seven months.

A job applicant who is improperly denied employment mu st make reasonable efforts to obtain a comparable, or substantially similar, job. (See Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 182 & fn. 5, 89 Cal. Rptr. 737.) "The burden of establishing mitigation rests with the employer, and in the absence of proof of other earnings, a presumption arises that the employee has been damaged in the 'sum which he would have received if he had performed the required duties in full.'" (California School Employees Assn. v. Personnel Commission (1973) 30 Cal. App. 3d 241, 249, 106 Cal. Rptr. 283, italics added.) "The general rule is that the measure of recovery by . . . [an] employee [who is not hired] is the amount of salary agreed upon for [*21] the period of service, less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment." (Parker v. Twentieth Century-Fox Film Corp., supra, 3 Cal.3d at p. 181, italics added.)

Here, Computec did not offer any evidence as to what Close earned at the Irish Electricity Supply Board or what she might have earned in between jobs. Close is therefore entitled to the full one-year salary specified in the employment agreement.

Finally, Computec does not contend that, assuming liability and damages, Close is not entitled to prejudgment interest at 10 percent per annum. The jury awarded one year of prejudgment interest -- $ 10,200 -- based on damages of $ 102,000. Given our conclusion that Close is entitled to $ 98,000 in damages, the appropriate amount of prejudgment interest is $ 9,800.

III

DISPOSITION

The judgment is modified so as to award $ 98,000 in damages and $ 9,800 in prejudgment interest. As so modified, the judgment is affirmed. Plaintiff is entitled to costs on appeal.

MALLANO, J.

We concur:

SPENCER, P. J.

ORTEGA, J.

58 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

EXHIBIT E

Ranganath Saraswati v. Michael J. Wildes, Leon Wildes and Law Offices of Wildes Weinberg, P.C.

No. GIC 742835

Verdict Date: 02/15/2001

Topic: Malpractice - Legal; Immigration Status Delayed

Result: Settlement talks:

Demand $ 500,000 before trial for policy limits. Offer $ 20,000 before trial increased to $ 155,000 after trial and before jury verdict.

Result: $ 365,000 total; $ 65,000 economic; $ 300,000 noneconomic. 10-2

Note: Plaintiff reports that the wrongful termination case went to trial and the plaintiff obtained a judgment against Polese Co. The case settled for a confidential amount.

Disbursement: Award Total: $ 365,000.

Injury: Injuries: Emotional distress due to difficulties with defendant attorneys, immigration status and loss of ability to attend his mother's death service.

Specials:

Wage loss to date $ 82,999. Other $ 8,900 for attorney fees.

State: California

Court: Superior Court of San Diego County, San Diego

Judge: Kevin A. Enright

Plaintiff Attorney: Deborah A. Wolfe; Nugent Newnham; San Diego, CA (Ranganath Saraswati)

Defendant Attorney: John Klinedinst; Klinedinest, Fliehman McKillop; San Diego, CA (Law Offices of Wildes Weinberg, P.C., Leon Wildes, Michael J. Wildes).

Douglas A. Pettit; Klinedinest, Fliehman McKillop; San Diego, CA (Law Offices of Wildes Weinberg, P.C., Leon Wildes, Michael J. Wildes).

Facts: October 1997, plaintiff, a 42-year-old metallurgical engineer and immigrant from India, hired defendants Michael Wildes, Leon Wildes and the law firm of Wildes Weinberg to represent him in obtaining permanent residency and a "green card." Defendants also represented Polese Co., the plaintiff's employer (they were named on the plaintiff's immigration application) in obtaining the I-140 approval. In September 1998, the plaintiff was terminated from his employment, after which he filed a wrongful termination suit against Polese Co. Without notice to the plaintiff (and apparently in concert with the employer), his lawyers notified the INS to withdraw all of the plaintiff's petitions, including Employment Authorization Document (EAD) and Advance Parole. This caused the plaintiff to fall out of status and the INS requested his immediate departure back to India. Plaintiff then had to re-file all of his documents anew (incurring additional attorney fees and costs), and this put him 5 years behind in obtaining legal residency status. Due to the loss of status, the plaintiff, a devout follower of the Hindu religion, was unable to attend his mother's first death anniversary service in India, a very important religious rite. He was unable to work during the two months he was out of status. When he did find new employment, he obtained an O-1 status with his 59 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4 new employer but was tied to this employer until a new EAD could be obtained. He earned substantially less in this position. Plaintiff brought suit against the defendants for legal malpractice and breach of fiduciary duty.

Plaintiff contended the defendants never advised him of any conflict of interest, whether actual or potential, with the plaintiff's employer. There was never any fee agreement between the plaintiff and the defendants. When the conflict between the plaintiff and his employer arose in August 1998, the defendants never notified the plaintiff about any immigration difficulties that could arise. The defendants breached their fiduciary duty to the plaintiff by representing and assisting Polese Co. in withdrawing the plaintiff's petitions for immigration.

Defendants contended that in October 1998, they notified the plaintiff that they would no longer be able to represent him and he should obtain other legal representation for his immigration problems. Plaintiff failed to timely obtain another attorney. He did not suffer any damages due to the defendants' actions.

Plaintiff Experts: Nancy Fuller-Jacobs; Legal Services; San Diego, CA, Immigration Law, Deborah Wolfe Robert H. Wallace, C.P.A., J.D.; Economics; San Diego, CA, Deborah Wolfe

Defendant Experts: Cary P. Mack, C.P.A.; Economics; San Diego, CA, Douglas Pettit, John Klinedinst Peter Larrabee; Legal Services; San Diego, CA, Immigration Law, Douglas Pettit, John Klinedinst

Insurance: Tamarack American

Issue: VOLUME 45-11

COPYRIGHT 2002 NLP IP Company -- American Lawyer Media. All rights reserved, VerdictSearch California Reporter COPYRIGHT 2002 NLP IP Company -- American Lawyer Media. All rights reserved VerdictSearch California Reporter

60 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

EXHIBIT F

Proposed Statement of Accuracy

March 31, 2004

Mr. Gregory dePape [address in Canada]

RE: Receipt of Your Personal Information Statement of Accuracy

Dear Mr. dePape:

Attached, please find the application we have completed using the information you provided me on March 15, 2004.

Please carefully review the attached application and its documents. Please advise us of any mistake you may find or of any information you feel is not being communicated accurately. Should you notice any missing information, please notify us of that also.

We are asking you to take this opportunity to review this application very seriously as any incorrect information submitted could result in detrimental consequences to you and your family in your attempt to come to the United States to begin your medical practice with Trinity Health Systems.

By signing below, you are certifying that all the information you provided us, which is reflected in the attached application, is true and correct.

Sincerely,

______Attorney at Law

APPLICATION HAS BEEN READ and APPROVED and CONTAINS NO MISTAKES OR OMMISSIONS.

______Dr. Gregory dePape Date

* Peter Williamson is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization and is a Senior Partner at Williamson and Chaves in Houston, Texas. Kay Adams is a 3L student at the University of Houston Law Center and participates in the Immigration Clinic under the supervision of Associate Professor, Joseph Vail. 1 Quote by Peter Williamson. 2 Panteha Abdollahi, The Labor Certification Process: Complex Ethical Issues For Immigration Lawyers, 17 GEOILJ 707 (Summer 2003). 3 Id. 4 Gregory dePape v. Trinity Health Systems, Inc. and Trimark Physicians Group, Inc. and Trinity Health Systems, Inc. and Trimark Physicians Group, Inc. v. Blumenfeld, Kaplan, & Sandweiss, 242 F.Supp.2d 585, 616 (N.D.Iowa 2003). 61 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

5 Jay Foonberg, How to Start and Build a Law Practice (Shepard’s McGraw-Hill) (1992). 6 John Grisham, The King of Torts (Doubleday) (2003). 7 Id. 8 Gregory dePape v. Trinity Health Systems, Inc. and Trimark Physicians Group, Inc. and Trinity Health Systems, Inc. and Trimark Physicians Group, Inc. v. Blumenfeld, Kaplan, & Sandweiss, 242 F.Supp.2d 585 (N.D.Iowa 2003). 9 Id. 10 Id. at 612. 11 Id. at 617. 12 Id. at 617. 13 Id. at 615; Clark v. Estate of Rice ex rel. Rice, 653 N.W.2d 166, 171 (Iowa 2002) (citing Lawrence v. Grinde, 534 N.W. 2d 414, 421 (Iowa 1995). 14 Id. at 615. 15 Gregory dePape v. Trinity Health Systems, Inc. and Trimark Physicians Group, Inc. and Trinity Health Systems, Inc. and Trimark Physicians Group, Inc. v. Blumenfeld, Kaplan, & Sandweiss, 242 F.Supp.2d 585, 616-617 (N.D.Iowa 2003). 16 Richard Gump, I-9 Audits, Compliance, and Employer Sanction Issues, (March 2004), available by request at, [email protected]. 17 Id. at 5. 18 Id. 19 Id. 20 Id. 21 Id. at 7. 22 Id. 23 Id. 24 Id. 25 Id. 26 Id. at 7-8. 27 Texas Disciplinary R. Prof’l Conduct 1.06, reprinted in Tex. Gov’t Code Ann., tit.2, subtit. G app. A (Vernon Supp. 1997)(Tex. State Bar R. art. X, §9). 28 Texas Disciplinary R. Prof’l Conduct 1.06. 29 Texas Disciplinary R. Prof’l Conduct, Gov. C. Subt. G, App., Art. X, § 9, Rule 1.06(a). 30 Texas Disciplinary R. Prof’l Conduct, Gov C Subt. G, App., Art. X, § 9, Rule 1.06 (b). 31 Texas Disciplinary R. Prof’l Conduct, Gov C Subt. G, App., Art. X, § 9, Rule 1.06 (c). 32 Elizabeth Williams, Pre -Trial Dissolution Practice, 1 Tex. Fam. L. Svc. §1.20. 33 Section 81.079(b) (Public Notification and Information) of the Government Code of the State Bar of Texas requires attorneys to place a brochure, in English and Spanish, in their offices for consumers to have access to learning about the grievance process available to them. In contrast, some immigration consumers, such as the individual that gets removed due to an attorney’s negligence, is unlikely to have much recourse against the attorney. 34 Id. 35 Id. 36 Id. 37 Tex. Disciplinary R. Prof’l Conduct 1.07. 38 Id.

62 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

39 Tex. R. Disciplinary P., reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A-1 (Vernon Supp. 1997); also available at http://www.texasbar.com.html. 40 Section 81.079(b) (Public Notification and Information) of the Government Code of the State Bar of Texas, was added by Acts 1991, 72nd Leg., ch. 795, § 23, eff. Sept. 1, 1991. 41 The investigatory hearing process is further explained by Ms. Miller’s answer, “for all grievances filed prior to Jan. 1, 2004, wherever there was an allegation of professional misconduct lodged in the grievance, a hearing was held. Both the complainant and the respondent could attend. The hearing was confidential and the investigatory panel had the option of negotiating a sanction with the lawyer in cases where misconduct was believed to have occurred. Cases not resolved by agreement went forward to be adjudicated before either an evidentiary panel, a different panel of the grievance committee or a district court, at the option of the respondent lawyer. This methodology will apply to all cases filed prior to January 1, 2004, through their conclusion.” 42 Id. 43 Interview by State Bar of Texas with Dawn Miller, State Bar of Texas Chief Counsel, Austin, TX (March 2004), available at, http://www.texasbar.com.html. 44 During sunset review of the State Bar of Texas by the Texas Legislature, the Sunset Commission recommended changes to the disciplinary system that was included in the State Bar Act. Later, the Supreme Court of Texas adopted these recommendations that resulted major changes to the attorney disciplinary system, which complied with the legislation’s established deadline. More information is available at http://www.texasbar.com.html. 45 Interview by State Bar of Texas with Dawn Miller, State Bar of Texas Chief Counsel, Austin, TX (March 2004), available at, http://www.texasbar.com.html. 46 Id. 47 Panteha Abdollahi, The Labor Certification Process: Complex Ethical Issues For Immigration Lawyers, 17 GEOILJ 707 (Summer 2003). 48 Id. at 5. 49 Id. at 9 – 10. 50 Id. at 5. 51 Id. at 5.; INA § 274A(e)(4)(A)(i-ii), 8 U.S.C. § 1324A(e)(4)(A)(i- ii) (2002). For the first violation, an employer is subject to a fine of up to $2000 for each unauthorized employee knowingly employed. 52 Id. at 5.; INA § 274A(f), 8 U.S.C. § 1324A(f) (2002). 53 Id. at 5.; Bruce A. Hake, Dual Representation in Immigration Practice: The Simple Solution is the Wrong Solution, 5 GEO. IMMIGR. L.J. 581, 616 (1991) at 581. 54 Panteha Abdollahi, The Labor Certification Process: Complex Ethical Issues For Immigration Lawyers, 17 GEOILJ 707 (Summer 2003). 55 Id. at 5. 56 Id. at 5. 57 Id. 58 Id. 59 Id. at 10-12. 60 Id. at 6. 61 Id. 62 Id. 63 Id. 64 Id. at 9.; 8 C.F.R. §292.3 (2002). 65 Id. at 10. 66 Id. at 10.; In re Leifer, 438 N.Y.S.2d 789 (N.Y. App. Div. 1981).

63 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

67 Id. at 11. 68 Id. at 11. 69 Id. at 70 Gregory dePape v. Trinity Health Systems, Inc. and Trimark Physicians Group, Inc. and Trinity Health Systems, Inc. and Trimark Physicians Group, Inc. v. Blumenfeld, Kaplan, & Sandweiss, 242 F.Supp.2d 585 (N.D.Iowa 2003). 71 Id. at 585. 72 Id. at 590-591. 73 Id. at 591. 74 Id. at 591. 75 Id. at 591. 76 Id. at 592. 77 Id. 78 Id. 79 Id. 80 Id. at 593. 81 Id. 82 Id. 83 Id. 84 Id. 85 Id. at 595. 86 Id. 87 Id. 88 Id. 89 Id. at 615. 90 Id. at 586. 91 Id. at 599. 92 Id. 93 Id at 599, 610. 94 Id. at 600. 95 Id. 96 Id. 97 Id. 98 Id. 99 Id. at 608. 100 Id. at 608. 101 Id. at 608-609. 102 Id. at 609. 103 Id. at 610. 104 Id. at 611. 105 Id. at 610-612. 64 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

106 Id. at 614. 107 Id. at 616. 108 Jose Luis Vega Gonzalez v. State of Oregon, 83 P.3d 921 (Or. App. 2004). 109 Id. 110 Jose Luis Vega Gonzalez v. State of Oregon, 83 P.3d 921 (Or. App. 2004) 111 See Moen v. Peterson, 312 Or. 503, 513, 824 P.2d 404 (1991). 112 Lyons v. Pearce, 298 Or. 554, 694 P.2d 969 (1985). 113 Gabriel J. Chin and Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697, 699 (2002). 114 Lyons v. Pearce, 298 Or. 554, 694 P.2d 969 (1985). 115 Madeline Close v. Computec International Resources, Inc., 2004 WL 119403, January 27, 2004 (this opinion has not been certified for publication or ordered published for purposes of rule 977(a) of the California Rules of Court.) 116 Id. 117 Saraswati v. Wildes, available at, 2001 WL 370548, *1 (Verdict and Settlement) (Cal. Superior Feb 15, 2001) (NO. GIC742835); Saraswati vs. Wildes (Appeals Case), available at, 2002 WL 90452 (Cal. App. 4 Dist.). 118 Id. 119 Id. 120 Id. 121 Id. 122 Id. 123 Saraswati vs. Wildes (Appeals Case), available at, 2002 WL 90452 (Cal. App. 4 Dist.). 124 Saraswati v. Wildes, available at, 2001 WL 370548, *1 (Verdict and Settlement) (Cal. Superior Feb 15, 2001) (NO. GIC742835). 125 Saraswati v. Wildes, available at, 2001 WL 370548, *1 (Verdict and Settlement) (Cal. Superior Feb 15, 2001) (NO. GIC742835). 126 Id. 127 Id. 128 Saraswati vs. Wildes (Appeals Case), available at, 2002 WL 90452 (Cal. App. 4 Dist.). 129 Id. 130 Id. 131 Neary v. Regents of University of California, 3 Cal.4th 273, 284, 10 Cal.Rptr.2d 859, 834 P.2d 119 (1992). 132 Id. 133 Id. 134 Id. 135 Id. 136 Saraswati vs. Wildes (Appeals Case), available at, 2002 WL 90452 (Cal. App. 4 Dist.). 137 United States v. Lew, 875 F.2d 219 (9th Cir. 1989). 138 Id. 139 Id. 140 Id. 141 Id.

65 Dual Representation, Violations of Ethics Codes, and $278,763.20 Malpractice Awards: Do Immigration Attorneys Practice Law Under a Higher Level of Scrutiny? Chapter 4

142 Id. 143 Id. 144 McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). 145 Fed. R. Crim. Proc. 52(b). 146 United States v. Lew, 875 F.2d 219 (9th Cir. 1989). 147 Operation Strong Tree, 64 No. 44 Interrel 1291 (November 16, 1987). 148 Operation Strong Tree, 64 No. 44 Interrel 1291 (November 16, 1987); Other References to Operation Strong Tree, available at, "L.A. Lawyer Gets Year in Prison for Visa Fraud," Los Angeles Times, September 26, 1987, at Part I, p. 15, col. 1; "Mistrial Declared in Lawyer Fraud Case," San Francisco Recorder, April 28, 1987, at 1; "Immigration Counsel Gets 1 Year for Defrauding the Government," San Francisco Recorder, September 28, 1987, at 2, col. 2; San Francisco Recorder, April 28, 1987, at 1; San Francisco Recorder, September 28, 1987, at 2, col. 2. 149 Lara v. Trominski, 216 F.3d 487 (5th Cir. 2000). 150 Id. 151 Matter of Thacker, 881 SW2d 307 (Tex. 1994). 152 Texas Penal Code §25.11. 153 Id. (Majority Opinion reprinted in full). 154 Id. (Dissenting Opinion reprinted in full) 155 Snow: Outsourcing Can Help the Economy, available at, http://www.msnbc.msn.com/id/4631857/html.

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