WILMIC News & Risk Management Articles

Claims Digest: Immigration Law

One of the many aspects of risk management is identification and tracking of those practice areas that present the greatest likelihood of a claim against one of our insured lawyers. Plaintiff’s personal injury, Bankruptcy/Collections (consumer), Real Estate, and Estate Planning/Probate are the areas that generally produce the highest number of claims year in and year out.

Immigration claims are not typically at the top of WILMIC’s list when it comes to identifying risky practice areas. Immigration malpractice cases are rare. In fact, such claims were barely a blip on WILMIC’s radar, registering a mere 0.58% of all claims since 1986. That’s why it is notable that we have fielded more claims and potential claims in the current year than we have in the previous five, combined.

Having been thrust into the political spotlight, there has been a surge of immigrants in need of legal assistance. As of May 2019, there are 908,552 pending immigration cases in U.S. Immigration Courts. There are approximately 350 immigration judges nationwide in 58 immigration courts. Using those numbers, each immigration judge may have a backlog of more than 2500 cases. Lawful immigration is challenging. Families and individuals need lawyers to successfully navigate the many immigration pathways that depend on a variety of factors and which involve rapidly changing regulations and administrative priorities. It is clear that immigration attorneys have never been busier, so it is no surprise that WILMIC has seen an increase in claims among its insured immigration attorneys.

The U.S. immigration system is designed to be extremely selective, admitting only those who fit into specific categories – e.g., immediate relative of a U.S. citizen, employment/employer sponsor, age, marital status, investment capital, etc. For those who do not “fit” into any of the identified categories – or several of them – the system is impossible, and they will not be admitted. Moreover, if a mistake, such as a blown deadline or an error in choice of procedures, is made, a person with an otherwise winnable case can be forced to start the process over or worse, be deported.

It is essential to an immigrant’s success the s/he hires a lawyer to assist in the process. In fact, Natalie Yahr, Wisconsin Center for Investigative Journalism, May 19, 2019, recently found:

“…that of Wisconsin residents whose cases began between 2010 and 2015, those who had lawyers were more than six times as likely to be allowed to stay in the country as those without. Nearly 55% of those with lawyers were allowed to stay compared to 9% of immigrants without lawyers.”

This shows that it has never been more important for someone involved in the immigration system to have a lawyer. And, with greater need, more attorneys are willing to take on new cases, and seasoned immigration attorneys are likely to have increased workloads.

This need for immigration attorneys presents exciting opportunities for those who are just getting started or who are newer to the practice. It is important to heed SCR 20:1.1 – Competence, which states, in part:

“Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

In cases where a lawyer has little or no experience, it is imperative that she or he make use of the skills that apply to all areas of law: analysis of precedent, evaluation of evidence and legal drafting, and the most fundamental legal skill of “issue spotting.” As the comment to the aforementioned rule states:

“A lawyer can provide adequate representation in a wholly novel field through necessary study.” 

The comment goes on to say that association with a lawyer who has established competence in a certain field is an equally reasonable way to go about establishing competent representation. Before you hire or contract with another attorney, be sure that the lawyer’s services will meaningfully contribute to the services to the client and to obtain informed consent from the client. The increase in work available in the area of immigration creates a terrific opportunity for the budding practitioner to establish a network of lawyers and others who can assist in providing competent representation to the many who need it.

One final note, SCR 20:1.3 – Diligence, states:

“A lawyer shall act with reasonable diligence and promptness in representing a client.”

This rule, combined with the Competence Rule 20:1.1, established that a lawyer’s workload must be controlled in order to provide proper service to the client. For those lawyers who are seasoned in the area of immigration law, it is important to maintain a manageable workload. Although it can be tempting to take on every case that comes in the door, a lawyer needs to be aware of the current demands on his or her time. There is little worse than a simple error, such as overlooking a statute of limitations, destroying the client’s legal position.

Immigration is definitely a growing practice area solution to the overburdened Immigration Courts across the nation. This presents a challenge to the legal community, which it will undoubtedly meet with varying degrees of success. One thing is clear: immigrants who have an attorney’s assistance fare far better than those who don’t.

As our insured lawyers continue to meet the needs of the immigrant population, it is imperative to put themselves in the best position possible to be able to competently and diligently assist their clients.

Matt Beier

Matt Beier is a Claims Attorney with Wisconsin Lawyers Mutual Insurance Company (WILMIC), and works to investigate, evaluate and resolve claims as efficiently as possible. He can be contacted via e-mail or by calling (800) 373-3839 ext. 221.