Dreaming of the Guild

Meet Sergio C. Garcia. Mr. Garcia was born in Villa Jimenez, Mexico in 1977. Villa Jimenez is a rather small village a little bit south of the freeway between Mexico City and Guadalajara, about two-thirds of the way to the latter city.

When he was 17 months old, his parents brought him to California without any kind of documentation. He lived in California until he was about nine years old.

When he was 17 (this would be in 1994), he and his father returned to California, again without documentation, although his father got an immigration visa in 1995 and Mr. Garcia applied for one immediately thereafter. These visas are granted by a waiting list. Mr. Garcia has been on the waiting list for a permanent residency visa for nineteen years.

During this time, he graduated from high school, attended community college and transferred to the California State University at Chico, where he took a bachelor’s degree. Subsequently, he attended Cal Northern School of Law, taking a juris doctorate in 2009. (He lives all the way up there in Chico. I didn’t have a chance to meet with him and talk him out of this.)

He passed the Multistate Professional Responsibility Exam, and then the California Bar Exam given in June of 2009. His moral character evaluation reveals that he has never been convicted of any crime, and had only one minor incident with an employer while a teenager concerning his status as an undocumented alien. On his bar application, he (truthfully) described his citizenship status as “pending.”

Today, the California Supreme Court unanimously approved Mr. Garcia’s petition for admission to the California State Bar.

The relevant statutes are 8 U.S.C. § 1621, and California Business & Professions Code § 6064(b), which is part of the State Bar Act. The Federal statute provides, in relevant part, that professional licenses may not be granted to undocumented aliens, unless a state passes a law after August 22, 1996, specifically providing that such licenses may be granted. I do not have sufficient legislative history in front of me indicating why August 22, 1996 was chosen as the sunrise date for this deference.

The State Bar Act was amended effective January 1, 2014, after the Legislature, by majorities in both houses much larger than the Democrats’ majorities there, passed what is now B&P Code 6064(b) providing:

Upon certification by the examining committee that an applicant who is not lawfully present in the United States has fulfilled the requirements for admission to practice law, the Supreme Court may admit that applicant as an attorney at law in all the courts of this state and may direct an order to be entered upon its records to that effect. A certificate of admission thereupon shall be given to the applicant by the clerk of the court.

The Supreme Court found that this new act qualifies as a state-level exemption under 8 U.S.C. § 1621, so Mr. Garcia’s status as an undocumented alien was no bar to his admission. So, both Congress and the California Legislature, who presumably represent the will of the majority of voters, have created a statutory pathway to bar admission for people like Mr. Garcia.

Note that at the time Congress passed the deference statute in 8 U.S.C. § 1621, Republicans controlled Congress; note that the margins of votes in the California Legislature indicates that at least half the Republicans in both the upper and lower houses of the Legislature voted in favor of B&P Code 6064(b).

In any event, the legal barriers to Mr. Garcia’s bar admission have been removed. The fact that the Court waited to announce its decision on the first business day that those legal barriers were taken down hints at something about the Court’s intent, but the Supreme Court did not compel the Legislature to amend the State Bar Act.

But also notice that the amendment to the State Bar Act uses permissive language, rather than mandatory: the Supreme Court “may” admit the application, rather than “shall” admit the applicant. We aren’t quite out of the realm of the normative here; the Supremes could have used their discretion to deny admission. So should they have?

Not too long ago, I wrote of my reservations about Stephen Glass seeking admission to the Bar. The ultra-condensed version is: there are two things in particular that we care about lawyers doing: lying to colleagues, clients, and courts; and stealing from their clients. Stephen Glass’ past conduct contains a pattern of willful and sculpted dishonesty. While he seems to have lived an honest life since his public shaming for journalistic dishonesty, it’s not clear what burden of proof of reform he should have to offer. So there is an unsettled issue of whether Mr. Glass might resort to untruths in his practice when the facts get rough (as they do for all attorneys, inevitably).

Sergio Garcia’s conduct — he re-entered the United States at age 17 when he had sufficient maturity to understand that doing so was contrary to the laws of this country, and has remained here since then awaiting eventual review of his visa application so he’s technically here illegally, and has worked here illegally — does not touch upon the two very sensitive issues about which I would have the Bar, and the Supreme Court, be particularly vigilant. At most, they touch on the question of respect for the law in a generalized sense.

But nobody’s perfect; nearly everybody out there, including attorneys, have committed at least petty violations of law. If nothing else, lots of people speed and park their cars where they shouldn’t. We let people who have DUI’s practice law. We let people who pirate software practice law. Some violations of the law do not involve moral turpitude, and even some crimes that do involve moral turpitude aren’t particularly relevant to what lawyers do.

Mr. Garcia lied about his citizenship once when applying for a job when he was 17, for which he avows contrition. And he may have driven a car without a license for a few months when he lived in Oregon. These mistakes don’t leave me with an abiding mistrust of his integrity. The big reasons why we might want to keep someone from entering the legal profession are not present in Mr. Garcia’s case.

But there may well be other reasons, and an amicus to the California Supreme Court have raised them. The first was that Mr. Garcia, or indeed any undocumented alien, cannot truthfully take the oath of office of an attorney, providing that the attorney will “…support the Constitution and laws of the United States… .” Simply by being in the United States, the argument goes, Mr. Garcia is violating the laws every day. In response, California’s high court said:

Although an undocumented immigrant’s presence in this country is unlawful and can result in a variety of civil sanctions under federal immigration law (such as removal from the country or denial of a desired adjustment in immigration status), an undocumented immigrant?s unauthorized presence does not constitute a criminal offense under federal law and thus is not subject to criminal sanctions. Moreover, federal law grants federal immigration officials broad discretion in determining under what circumstances to seek to impose civil sanctions upon an undocumented immigrant and in determining what sanctions to pursue. Under current federal immigration policy it is extremely unlikely that immigration officials would pursue sanctions against an undocumented immigrant who has been living in this country for a substantial period of time, who has been educated here, and whose only unlawful conduct is unlawful presence in this country. (Citations omitted, but see page 4 of this document from ICE.)

The other argument advanced was that as an undocumented alien, Mr. Garcia cannot lawfully be employed in the United States. And indeed, everyone who appeared before the Supreme Court on the issue, and the Court itself, agreed that a law firm, a lawyer, a governmental entity, or a corporation cannot lawfully offer Mr. Garcia employment.

But, everyone agreed that Mr. Garcia could represent a client pro bono, that working for free is not “employment.”

So what if he opened up his own practice, and did not have any employer other than himself? Is it lawful for him to be engaged as an attorney in exchange for a fee? The amicus, and the Federal government, said “no,” but the Committee of Bar Examiners and Garcia himself said “yes.”

For my part, while I refer to clients “hiring” and “firing” lawyers, I do not consider my clients my “employers.” I use the word “retain” as much as I do “hire” with respect to an attorney representing a client. My clients do not control the time, place, and manner of the bulk of my work; my relationship to my clients is that of an independent contractor and that’s a different sort of relationship than that of employer and employee. Does Federal immigration law prohibit working as an independent contractor? (I notice the Feds argued that it does. Doesn’t necessarily mean they’re right, though, at least not in the professional context, but they kind of have to argue for the broadest interpretation of their own law.)

The Supreme Court basically punted on this argument. It said that certain kinds of practice are explicitly prohibited (like practicing before the ICE), and that there is a general prohibition on attorneys from undertaking representation where they cannot competently render service. “Competently” often refers to the attorney’s own level of skill, knowledge, and experience, but it can also refer to a legal or ethical inability to act as a lawyer. The Supremes basically said that until and unless someone shows that Mr. Garcia has made bad decisions about what to do with his license, there is no reason to presume that he will undertake an illegal representation of a client.

And that seems right to me. We can’t know — he can’t yet know — what Mr. Garcia will do with his license to practice law. It will be incumbent upon him to determine what he can or cannot do, and he cannot help but be cognizant of the fact that he operates under special restrictions and special scrutiny, and will govern himself accordingly.* It’s certainly inappropriate to presume that he will do so, just as it’s inappropriate to presume that he would use a license to drive wrongfully.

There are lots of things one can do with a license to practice law. Some of them are profitable. Lawyers tend to be clever; Mr. Garcia may be clever and find a way to practice law in a remunerative way that does not violate any law. If so, why should we stop him?

Also, a license to practice law in California does not come with a requirement that he live here. There’s hundreds, probably thousands, of California admittees who live out of state, out of the country, even. I’m sure that there are Mexican law firms that would want a California lawyer, or a Mexican branch office of a California-based firm that could employ him in Mexico or as a telecommuter to the Mexican office until he gets his visa. If such an arrangement doesn’t violate U.S. law, then there’s no reason he shouldn’t be able to do it, which means the license should issue. (I don’t know if it would or not.)

And if he does screw up, he should have to answer for it the way any of the rest of us lawyers would — but he hasn’t screwed up yet. And most of us lawyers go our entire careers without screwing up sufficiently awfully that the Bar needs to discipline us. We certainly don’t start out attorneys’ careers by saying that their mere existence is a violation of law.

I certainly don’t feel like my license is cheapened in any way because Mr. Garcia is now a brother member of the Bar. I’ve practiced adversely and cooperatively with attorneys who were born and raised in other nations; Mr. Garcia was raised more in California than he was in Mexico. Culturally, he’s as much an American as he is a Mexican. He’s smart enough to have passed the bar on the first try; after that, it’s a question of whether he has sufficient integrity to be trusted with handling matters that affect other people’s lives. There’s no reason to think not.

So welcome to the Guild, Mr. Garcia. Good luck; cite-check often; use your license for good, not ill, and may you be granted permission by the government to legally seek regular employment at the soonest possible date. After all, if we had a sensible set of laws concerning immigration and naturalization, you’d have been a full citizen of this nation a long time ago.

* “Govern yourself accordingly” is a common closing line of a letter threatening a panoply of unpleasantnesses should the recipient fail to comply with the sending attorney’s demands. When I see it at the end of correspondence I usually interpret it as legalese for an instruction to engage in a reflexive reproductive act. I bear Mr. Garcia no ill will so I disclaim any such implication here — but if in his practice he should see that phrased used in correspondence to himself or his clients, hopefully he’ll bear in mind my default interpretation and be governed accordingly. Damn, I did it again!
 
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.