Monthly Archives: January 2015

Ethical Guidelines for Offering Unbundled Legal Services

Posted on January 30, 2015 | Comments Off on Ethical Guidelines for Offering Unbundled Legal Services

When lawyers unbundle their legal services, they break down the tasks related to a client’s case and tackle certain parts, while the client addresses the remaining parts.

Instead of offering a complete set of services from start to finish, the lawyer provides specific, limited-scope representation to clients who can’t afford (or don’t want) full representation.

Unbundled services help pro se litigants and others with limited means gain access to legal assistance they would not otherwise have. It also enables lawyers — particularly solo and small firm practitioners – to compete with big, traditional firms as well as online legal services like LegalZoom and Rocket Lawyer.

The American Bar Association (ABA) encourages lawyers to offer unbundled services or limited representation, when appropriate. Most states have adopted the ABA Model Rule 1.2(c) or a similar rule allowing limited representation.

Minnesota fully adopted the rule, which states, “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”

Despite widespread support for unbundled services from the ABA and many state bars, lawyers need to consider the ethical implications when providing limited representation.

Earlier this month, at an MSBA-sponsored CLE program, Patrick Burns, First Assistant Director of the Office of Lawyers Professional Responsibility, discussed ethical considerations and best practices in limited scope engagements. They include the following:

1. Limited representation creates an attorney-client relationship between you and the client

Delivering limited representation to a person — even it involves a single instance of giving brief advice — creates an attorney-client relationship. If it is reasonably foreseeable that a person will rely on your advice, an attorney-client relationship is created. This means the ethical responsibilities of competence, diligence, confidentiality and loyalty apply in limited scope engagements.

Rule 4.2, MPRC prohibits communication about the subject of representation with a person you know to be represented by an attorney. Even when the person is receiving only limited representation from another attorney, the best practice is to communicate directly with that attorney until the attorney consents to your direct contact with the person.

Conflict-of-interest issues cannot be ignored in limited representation. The lawyer or law firm must run conflicts-of-interest checks against clients receiving full representation as well as those receiving limited representation.

2. The limits of representation must be reasonable under the circumstances of the case

The lawyer must evaluate the nature of the client’s matter, the client’s sophistication and abilities, and whether the limited scope will actually benefit the client.

Even if the representation is limited, it must always be competent and thorough, in accordance with Rule 1.1, MRPC. The lawyer needs to consider the substantive law involved. If a matter is so complex that full representation is required, the lawyer should avoid giving unbundled services. The lawyer also has to carefully assess the client’s needs and objectives, from the get-go, to decide whether full representation or limited scope engagement is appropriate.

Limited-scope representation is less common in litigation cases, is problematic in criminal defense and complex family law matters, and is inappropriate in consumer bankruptcy proceedings.

In other cases, it’s reasonable to provide limited scope engagement to help clients with a specific part of what they are trying to accomplish.  In immigration practice, limited representation is appropriate when parts of the case can be competently handled by a sophisticated and capable client, and the limited scope would benefit the client.

For instance, in a marriage-based green card case, an immigration attorney could start by asking the U.S. citizen petitioner and her foreign national spouse detailed questions about their marriage and the spouse’s immigration history and whether he has ever been arrested, charged or convicted of a crime.  After carefully determining eligibility, the lawyer then advises the clients to move forward with the application.

To save money, the clients might want to prepare the paperwork on their own, but then have the lawyer review it for accuracy and completeness before they file it with USCIS.  The lawyer might also counsel the clients on what to expect at the green card interview, but not represent them at the interview. Assuming there are no red flags (e.g., marital separation, criminal convictions, fraud or willful misrepresentation to obtain immigration benefits), limited representation can work in such cases.

3. The client must consent to limited representation

The client must give informed consent to the limited scope of the representation. The definition of “informed consent” is set forth in Rule 1.0(f), MRPC, which states: “’Informed consent’ denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

Burns advises lawyers to communicate three key things to the client: a) what services the lawyer will provide to the client, b) what services the lawyer will not provide to the client, and c) what the client will need to do on his own once the lawyer completes his part of the work.

Lawyers also ought to communicate the benefits of full representation and the risks of limited representation. The client needs to acknowledge that he is responsible for all other tasks and issues, which are not included in the limited scope, to complete the matter.

While Rule 1.5(b), MRPC, does not require a written retainer agreement, Burns recommends having one, especially when the representation is limited in scope. The scope of representation and rate or fee must also be communicated before or within reasonable time after beginning the representation.

4.  Limited scope engagements may include ghostwriting 

The Minnesota ethics rules do not address ghostwriting documents, including pleadings, for clients. Although ghostwriting is criticized for deceiving the court, circumventing Rule 11 of Civil Procedure, and unfairly providing advantage to pro se litigants, it is permissible in limited scope engagements.

Burns notes that lawyers who assist pro se litigants by ghostwriting pleadings must ensure that the pleading is not frivolous and has a good faith basis in fact and law. The lawyer is still on the hook for Rule 11 sanctions for drafting the pleading, even when he doesn’t sign it, if such a pleading otherwise warrants such discipline.

Lawyers may indicate they helped in drafting the document, but the client can make changes, take your name off, and has control over what gets filed with the court.

Choosing to not disclose your legal services does not amount to an intent to deceive the court. A pro se litigant’s receiving legal assistance behind the scenes is not material to the merits of the case. But the court may ask the client who helped in drafting the document and could call you in to describe the circumstances of the drafting. So keep a copy of the document in the form you delivered it to the client.

5. Do not ask for a malpractice waiver

It might be tempting to ask clients to waive in advance any possible malpractice claims that may arise from limited representation. But from a practical and client relations perspective, it’s better not to ask for one.

Rule 1.8(h), MRPC sets forth the steps lawyers must take to obtain an agreement limiting malpractice liability. The client must have independent counsel in making such an agreement. It is very unlikely that independent counsel will advise the client to prospectively limit their malpractice claims. Keep in mind also that malpractice claims are different from ethics complaints.

The best practice is to not commit malpractice! Fulfill your ethical responsibilities in limited representation just as you would in full representation. Just be clear on what your duties are and what they are not. You cannot be found negligent for failing to perform tasks that you had no duty to complete.

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In general, limited representation is favored by the ABA, state bars and ethics committees. It increases access to legal assistance and advice, especially for those who cannot afford full representation. Offering a la Carte or unbundled legal services is also good for business. It enables lawyers to compete with big firms and online legal services.

But lawyers must consider the ethical implications when providing unbundled legal services to avoid harming the client’s interests and facing an ethics complaint or malpractice claim.

This article provides general information only. Do not consider it as legal advice for any individual case or situation.   The sharing or receipt of this information does not create an attorney-client relationship.

The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct in her articles.  Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance. 

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Photo by: Geraint Rowland

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How to Avoid Unintentionally Abandoning Your U.S. Residency: 6 Critical Steps

Posted on January 19, 2015 | Comments Off on How to Avoid Unintentionally Abandoning Your U.S. Residency: 6 Critical Steps

Becoming a permanent resident of the U.S. is not a quick process.

Yet green card holders sometimes take their status for granted and lose it through unintentional abandonment.  This results from a host of reasons, such as staying outside the U.S. too long, being employed in the home country, and filing tax returns as a non-resident.

You may voluntarily and officially give up your U.S. residency by turning in your green card and filing a Form I-407, Record of Abandonment of Lawful Permanent Resident Status, with the appropriate U.S. Consulate or USCIS office.

But if you want to keep your lawful permanent resident (LPR) status, you should take these 6 critical steps to avoid unintentionally abandoning it:

1. Keep each trip abroad short (six months or less) 

Being a permanent resident gives you freedom to travel overseas and re-enter the U.S. with your green card and a valid passport, without needing a visa.

Short visits outside the U.S. lasting less than six months are usually not a problem. Frequent travelers should return to the U.S. as often as possible and within six months of any departure.

Trips outside the U.S. lasting six to 12 months bring greater scrutiny and suspicion that you abandoned your residency. And trips outside the U.S. lasting more than 12 months lead to a presumption that you abandoned your residency. You will then have to convince the U.S. Customs & Border Protection (CBP) officer or the Immigration Court that you did not abandon your residence.

If you are absent from the U.S. for six consecutive months or more, you risk losing your green card when you try to reenter the U.S. This is especially true when you have multiple, prolonged absences or when you have received prior warnings from a CBP officer at the port of entry.

2. Make sure your visits abroad are fixed and temporary and that you return to the U.S., as your permanent home, for extended periods 

Coming back to the U.S. before you hit the six to 12-month mark of being absent is not a surefire way to preserve your residence. The length of time abroad is not the only factor to consider.

When your trips abroad (particularly to your home country) are frequent, you run the risk of being subject to scrutiny by the CBP each time you seek re-entry. Regular, extended trips outside the U.S., followed by relatively short stays, will cause CBP to doubt whether your true residence is in the U.S. The CBP may question  you about your travel patterns, employment history and other factors to determine if you just return to the U.S. to hang on to the green card, but do not really have a permanent home in the country.

Returning to the U.S. within one year is necessary to maintain LPR status and to re-enter the U.S. without a reentry permit. But such a return is not always enough to show that you did not abandon your residence.

Following a trip abroad, a permanent resident must be returning to an unrelinquished residence in the U.S. In Matter of Kane, the Board of Immigration Appeals found that a Jamaican citizen abandoned her LPR status when she spent 11 months of every year living in her native country and returned to the U.S. for one month every year.

LPR status is granted to those who intend to make the U.S. their permanent home. When you leave the U.S. with the intent of making another country your true home, you in effect abandon your U.S. residency.

The purpose of your leaving the U.S. must be temporary; your visit abroad must have a fixed timeline; and you must intend to return to the U.S. as a place of permanent employment or as an actual home.

A visit abroad of any length will be considered temporary and fixed if it will end on a certain date (e.g. temporary placement abroad by your U.S. employer; “round the world” travel; professional training; attendance at school; sabbatical) or when a certain event takes place (e.g. travel to care for a sick relative; travel to liquidate assets or business abroad; travel for a work project with a clear end date).

Be prepared to show proof that you intended to return to your U.S. residence, especially if your trip abroad lasted six months or more.

3. Maintain your ties to the U.S. 

Any absences from the U.S. – even if is less than one year – may be considered in deciding whether you abandoned your residence.  Permanent residents must maintain family, employment, financial and property ties in the U.S. and have documentation to prove these ties.

Proof that you did not abandon your U.S. residency includes:

  • Evidence of your filing U.S. income tax returns for the past year(s).
  • A valid U.S. based driver’s license
  • The name and address of your U.S. employer and evidence that it paid your salary.
  • Evidence of ownership or leasing of property, such as a home, in the U.S.
  • Evidence of ownership of assets, such as a bank account, in the U.S.
  • Evidence of immediate family members, such as a U.S. citizen child or spouse, in the U.S.
  • Evidence of registration or attendance at a U.S. school.
  • Evidence of professional affiliations or club memberships in the U.S.

4. Minimize your ties to your native country or to a third country

If you maintain strong ties to another country and stay there frequently or for extended periods, you could be found to have abandoned your U.S. residence, based on the totality of the circumstances.

Avoid actions that strengthen your ties overseas, such as extended visits to family members in your home country; owning property in your home country; working abroad for a foreign employer;  being self-employed or running a business in your home country; voting in foreign elections; running for political office in a foreign country; and failing to file your U.S. income tax returns or filing them as a non-resident alien.

5. Get a reentry permit or a returning resident visa for admission to the U.S. following a long absence

Your green card becomes technically invalid for reentry into the U.S. if your trip abroad lasted one year or more.  While your green card can be used for reentry following an absence of less than one year, you may be treated as seeking admission to the U.S. if you were gone for six months or more.

A reentry permit is a must-have for permanent residents who plan to stay outside the U.S. for one year or more, but want to keep their U.S. residency. A reentry permit is also recommended when each stay abroad lasts less than one year, but the permanent resident travels frequently and spends considerable time outside the U.S.

To get a re-entry permit, you must file a Form I-131, Application for Travel Document, with USCIS and complete the biometrics (photo and fingerprinting) before you depart the U.S. If you leave the U.S. while the application is still pending, you may request USCIS to send the reentry permit to you through a U.S. Consulate or USCIS office overseas.

A re-entry permit helps to show you did not intend to abandon your status. It also permits you to apply for admission to the U.S. following an absence of up to 2 years without needing a Returning Resident (SB-1) immigrant visa.

If you did not apply for a re-entry permit before you left the U.S for a period lasting one year or more, you should apply for a Returning Resident visa at the U.S. Consulate. The consular officer will grant the visa  if he finds that you departed the U.S. with the intent of returning to an unrelinquished U.S. residence, and your stay abroad was for reasons beyond your control and for which you were not responsible.

With a re-entry permit, you may not be found to have abandoned your residence based only on the length of time spent abroad. The re-entry permit, however, does not guarantee retention of LPR status or prevent a finding of LPR abandonment.  You may still be found to have abandoned your residency based on other relevant factors, such as weak ties in the U.S. and strong ties overseas.

6. Be prepared to explain the temporary purpose of your trip abroad and avoid signing a Form I-407 at the port of entry

Following any trips abroad, permanent residents need to present a valid green card  to the CBP officer at the U.S. port of entry. Based on travel history, employment ties, etc., the CBP may find that a permanent resident is really living outside the U.S. and has abandoned his U.S. residency.

If the CBP believes you abandoned your LPR status, they can take steps to have it officially revoked or cancelled. The officer may give you an opportunity to withdraw your application for admission or grant you Deferred Inspection.

If you wish to keep your U.S. residency, it’s better to avoid withdrawing your request for re-entry. Instead, explain the temporary purpose of your trip abroad and the compelling circumstances that led you to stay overseas as you did.

If the CBP still believes you abandoned your residency, it  may confiscate your green card, defer your inspection, and issue a parole document temporarily allowing you into the U.S. on the condition that you report to them at a scheduled date with proper documentation proving you reside in the U.S. Being paroled into the U.S. and receiving Deferred Inspection is short of lawful admission as a permanent resident.

At your Deferred Inspection appointment, the CBP may agree that you reside in the U.S. and give you back your green card. But if it finds you do not maintain a permanent home in the U.S., you may be detained in the custody of U.S. Immigration & Customs Enforcement (ICE) or released conditionally, and placed in removal proceedings before the Immigration Court.

In removal proceedings, ICE has the burden to prove by clear and convincing evidence that you abandoned your residence. An immigration judge may terminate removal proceedings and allow you to keep your green card if you prove you did not abandon your residence. If the Immigration Court finds that you abandoned your status, you may defend yourself against removal by filing a form of relief for which you qualify.

At the port of entry, the customs officer may give you a Form I-407, Record of Abandonment of Permanent Residence Status, to sign (sometimes in exchange for being admitted to the U.S. as a temporary visitor).

If you want to keep your status, do not sign the Form I-407 if one is given to you. Instead, ask for Deferred Inspection or a Notice to Appear in Removal Proceedings before the Immigration Court.

A signed Form I-407 can be used to show that you affirmatively abandoned your residence. It makes it much harder to prove that you you did not abandon your U.S. residency or did not intend to abandon it.

When Does the Question of Whether You Abandoned Your U.S. Residency Come Up? 

Applying for Admission at the U.S. Port of Entry

Each time green card holders return to the U.S. from a trip overseas, CBP officers may ask questions to determine whether they abandoned their U.S. residency. Common questions include:

  • Where have you been outside the U.S.?
  • How long were you there?
  • What were you doing there?
  • Why are you coming to the U.S. now?
  • What ties to the U.S. did you keep while you were away?

Filing a Naturalization Application with USCIS

When permanent residents apply to become naturalized U.S. citizens, they are asked questions about their trips abroad on the Form N-400 application. They are also asked about their current and past addresses; employers and schools; and whether they filed their federal, state or local taxes as a nonresident.

Information on the N-400 concerning where you have lived, worked, and kept ties, as well as the frequency and lengths of your trips abroad, could lead to complications. USCIS may find that you not only fail to meet the continuous residence and physical presence requirements for naturalization, but that you also abandoned your U.S. residency.

If USCIS finds that you abandoned your U.S. residency, it will deny the naturalization application and may issue a Notice to Appear in Removal Proceedings. If placed in removal proceedings before the Immigration Court, you would need to prove that you did not abandon your LPR status and defend yourself against removal.

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Consult with an experienced immigration attorney to help you determine whether your long absences from the U.S., frequent trips abroad, weak ties to the  U.S., or strong ties to another country could cause problems with re-entering the U.S. or becoming a naturalized citizen.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Temporary Protected Status (TPS): who can apply, when to apply, and what it provides

Posted on January 12, 2015 | Comments Off on Temporary Protected Status (TPS): who can apply, when to apply, and what it provides

Foreign nationals often want to know whether a civil war or other unstable conditions in their home country allows them to seek refuge and stay lawfully in the U.S.

Those who do not qualify for asylum might be still be able to obtain another form of humanitarian relief known as Temporary Protected Status (TPS).

TPS is a temporary immigration status granted to those who are already in the U.S. during a period when they cannot return safely to their home country or when the home country cannot handle the return of its nationals.

But the Secretary of Homeland Security must first designate the country for TPS due to the following temporary conditions:

  • Ongoing armed conflict (such as civil war)
  • A natural disaster (such as earthquake, hurricane, drought)
  • An epidemic or outbreak of disease
  • Other extraordinary and temporary conditions

WHO CAN APPLY FOR TPS

To qualify for TPS, you must meet these eligibility requirements:

1. Be a national of a country on the TPS list, or a person without nationality who last habitually resided in the designated country

You may visit the TPS page of the USCIS website to see which countries are currently designated for TPS.

As of January 12, 2015, they are El Salvador, Guinea, Haiti, Honduras, Liberia, Nicaragua, Sierra Leone, Somalia, Sudan, and Syria. (NOTE: Countries can be added or taken off the list following the date of this article.)

2. Have physical presence in the U.S.

You must have been continuously physically present in the U.S. since the effective date upon which your country was designated or redesignated for TPS.

3. Have continuous residence in the U.S.

You must have continuously resided in the U.S. from the date USCIS specifies for your country, usually a few months or days prior to the effective date of TPS.

The law allows an exception to the continuous physical presence and continuous residence requirements for brief, casual and innocent trips outside the U.S. (such as a short trip to Canada or Mexico).

You may NOT be eligible to obtain TPS or keep your TPS if you:

1. Have a serious criminal record

If you have been convicted of a felony or two or more misdemeanors in the U.S., you are ineligible for TPS benefits.

2. Are found inadmissible to the U.S. and do not qualify for a waiver

Criminal convictions, immigration violations, health issues, and other grounds can make you inadmissible to the U.S. You may file a Form I-601 for a waiver of inadmissibility in certain situations, such as when you sought to obtain immigration benefits by fraud or willful misrepresentation of a material fact.

You would need to show that the waiver is for humanitarian purposes, for keeping your family together, or for the public interest. Once you receive the waiver, it will apply to subsequent re-registrations, but not to other immigration benefits.

Some grounds, such as crimes involving moral turpitude and multiple criminal convictions (except purely political offenses), cannot be waived. If you are inadmissible and do not qualify for a waiver, you may not obtain TPS.

3. Are subject to the asylum bars

Although TPS is different from asylum, USCIS treats them the same way when it comes to the mandatory bars to asylum. So if you have firmly resettled in a third country, have persecuted others in your home country, engaged in or incited terrorist activity, pose a national security threat, or have been convicted of certain serious crimes, you are not eligible for TPS.

WHEN TO APPLY FOR TPS

You must file for TPS during the open initial registration or re-registration period, or qualify for late initial filing during any extension of your country’s TPS designation.

On November 20, 2014, Liberia, Guinea, and Sierra Leone were designated for TPS for 18 months from November 21, due to the outbreak of Ebola virus disease in West Africa. The 180-day registration period began on November 21, 2014 and runs through May 20, 2015.

On January 5, 2015, the designation of Syria for TPS  was extended from April 1, 2015 through September 30, 2016, due to ongoing conflict. The re-registration period for applicants who already have TPS began on January 5, 2015, and runs through March 6, 2015. Syria was also re-designated for TPS and the 180-day initial registration period for new applicants began on January 5, 2015, and runs through July 6, 2015.

The suspension of certain restrictions for on-campus and off-campus employment for F-1 nonimmigrant students from Syria was also extended, effective through September 30, 2016.

On January 7, 2015, the designation of El Salvador for TPS was extended for an additional 18 months, from March 10, 2015, through September 9, 2016, due to a series of earthquakes in 2001. The re-registration period for applicants who already have TPS began on January 7, 2015, and runs through March 9, 2015.

If you do not submit your TPS application within the specified period , you must qualify for a late re-registration or late initial filing for USCIS to accept it.

You must file with USCIS a Form I-821, Application for Temporary Protected Status, and a Form I-765, Application for Employment Authorization (regardless of whether you want a work card). If you are inadmissible due to criminal convictions, immigration violations, or other grounds, but qualify for a waiver, you must file your Form I-601, Application for Waiver of Grounds of Inadmissibility, with your TPS application.

For more information on the application process, go to the TPS page on the USCIS website.

WHAT TPS PROVIDES (AND DOES NOT PROVIDE)

What TPS provides

TPS permits you to live and work in the U.S. and travel in and out of the U.S. for the duration of the TPS designation without fear of being placed into removal proceedings. TPS may be granted to foreign nationals who are present in the U.S. on non-immigrant visas that will expire; those who initially entered the U.S. with a non-immigrant visa and then overstayed their authorized period; and those who entered without authorization.

As long as they remain eligible, TPS holders will not be removed from the U.S. and may apply for an Employment Authorization Document (EAD) to work anywhere in the country.

What TPS does NOT provide

TPS provides only temporary protection from removal. The authorization to live and work in the U.S. is also temporary.

The length of the TPS is typically between six and 18 months (although it can be extended). A country’s TPS designation can end once it recovers from the triggering event. Once the TPS designation ends, TPS holders may be removed from the U.S. (unless they qualify for another form of status or relief).

TPS does not allow individuals living in the designated countries to come to the U.S. You must already be in the U.S. – whether lawfully or unlawfully – for the specified period.

TPS is also not a grant of lawful permanent resident status and does not make you eligible for a green card or for U.S. citizenship.

(NOTE: TPS, however, gives you more time to remain lawfully in the U.S., which could lead to your qualifying for a green card in some other way, such as marriage to a U.S. citizen, sponsorship by a U.S. employer, or an asylum grant.)

Consult an Immigration Attorney 

There are strict eligibility requirements and filing deadlines for TPS. If your application is denied, it is tough to get the decision overturned on appeal.

You should consult an experienced immigration attorney to confirm whether you qualify for TPS and to get help with the application process.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Maurizo Costanzo, El Salvador – Earthquake 2001

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