coordinator: welcome and thank you for standing by. at this time, all lines are in a listen only mode. after the presentation, we will conduct a question and answer session. today's conference is being recorded. if you have any objections, you may disconnect at this time. i would now like to turn the meeting over to your host, lauren alder reid: . lauren alder reid: : good afternoon everyone or morning to those of you joining us in a different time zone and welcome to everyone in the room who i know is in our time zone, at least physically. we are happy to welcome to today to eoir's first official webinar and conference call public outreach event.
we hope that this is the first of many and we would encourage you to come to us with your ideas for topics or issues of interest to you as individuals or as organizations. if you wish to reach us, you can do so my email at pao.eoir@usdoj.gov and that is our main office mailbox. you can also reach us by phone at 703-305-0289. so today's session, as the operator noted, will be recorded and the reason we're recording it is for training purposes. as the operator indicated, if you do not consent to that recording, we ask that you either don't speak or disconnect. the format of the presentation today will be approximately a 1/2 an hour of our disciplinary council, (jenny barns) - (jennifer barnes), excuse me, speaking on attorney discipline matters and rules and procedures of professional conduct. when we finish the presentation, we will open the line to question and answer or questions or answer.
the operator will indicate at that time, you will press the number 1 i believe and that will put you in queue. we will take questions as they're entered as the operator presents them to us. the operator will ask at that time for your name and organization and we ask for that simply so that we can understand where you're coming from when you ask your question and perhaps help clarify some answers. when we do open for questions, we ask that you do not ask any individual case questions, anecdotes or finds. but should you ask an individual case question, we'll ask you to move on to your next question or we'll move on to the next caller. we will take questions through 3:30 pm, at which time the call will end and we would then welcome any additional questions through our email address or phone number provided previously.
i'd now like to introduce (jennifer barnes) our disciplinary council. she's been with eoir for 18 years, received her bachelor of arts degree in 1976 from miami university, a master of social work degree in 1979 from the ohio state university and a juris doctorate in 1988 from the university of san diego school of law. from 1994 until april 1995, (ms. barnes) served the appellate council for the former ins. from 1990 until 1994, she worked in the office of the general counsel for ins as an assistant attorney - excuse me, assistant general counsel and then as an associate general counsel. (ms. barnes) joined doj through the attorney general's honors program in 1988, serving as an ins trial attorney in san francisco.
she's a member of the california and district of columbia bar and a member of the national organization of bar counsel, (jenny). jennifer barnes thank you lauren and good afternoon or good morning everyone and thanks for joining our first webinar. i'm going to talk to you a little bit today about the eoir rules for professional conduct and then, of course, we'll get to the questions later and hopefully i'll be able to answer all of your questions. if you're following along with the powerpoint, our first line basically talks about our statutory right and our regulatory right to have the attorney discipline program with the eoir. we are under the general 1362, right to counsel provision and then the regulations were amended to specifically address the attorney discipline program
as being under the general jurisdiction of the office of the general counsel for the executive office for immigration review. the eoir rules of professional conduct apply to practitioners, which is a term that we developed to include the following types of representatives. practitioners are licensed attorneys, they are also included accredited representatives with recognized organizations and recognized by the board of immigration appeals. it includes law students and law graduates and reputable individuals with an additional category under the regulations. the rules, however, do now apply to government attorneys. government attorneys are regulated by the office of professional responsibility either through the department of homeland security or through the department of justice.
the attorney discipline program originated years ago with the legacy ins. but in may 1994, an inspector general's report recommended that the program be transferred from legacy ins to the executive office for immigration review. so that being, we worked on drafting a proposed rule that was published on january 20, 1998. we consulted with various state bars and came up with a rule that we thought was much improved over the existing rule. we received over 500 public comments that proposed rule and the final rule was ultimately published in june 2000 and went into effect in july 2000. we lived with the rule for quite a while before we determined how we needed to amend the rule. so we amended the rule in july 2008 with a proposed rule. this time we only got four public comments so i guess we were headed in the right direction
and the final rule was published in december 2008 and went into effect on january 20, 2009. the original grounds for discipline that were in the existing rule in 2000 are here on this screen. you can see these are grounds that have existed for quite a while. some of these grounds we use more often than others, such as false statements of material or a fact. those can be false statements made either in open court or it could be in writing in the form of a brief or a motion. obviously, one of the more common grounds that we use is an attorney who's been subject to a final order or a suspension or disbarment by a state or a federal court. those would be reciprocal cases where we would initiate reciprocal discipline against an attorney who has already been suspended or disbarred by state bar or by a federal court.
the ground involving (unintelligible) or obnoxious conduct is a ground that was already in the rule and unfortunately, we've had to rely on this ground of discipline more often than you might imagine. basically, we reserve using this ground of discipline for very egregious cases of professional misconduct. basically, this would be an attorney who is acting in an unprofessional manner either in open court towards an immigration judge. but we've also interpreted this ground fairly broadly in that we also use this ground when we learn of behavior on the part of an attorney that involves court staff or court employees, the person sitting at the window at the immigration court or at the board of immigration appeal. so, we take a particularly broad view of this that attorneys should be conducting themselves in a professional manner regardless of who they're coming in contact with at the court.
whether it's other litigants, whether it's the judge or whether it's a court - any court staff or court employees. but, we do reserve this for particularly egregious behavior and but we have used it in the past. attorneys who've been convicted of a serious crime are subject to discipline under these rules. attorneys who engage in any kind of frivolous conduct, typically that occurs, you know, in a brief or a motion or applying for certain forms of relief. attorneys who engage in ineffective assistance of counsel, this is a grounds for discipline as well. the ineffective assistance of counsel is a finding that has to have been made by an immigration judge or the board of immigration appeals in order for us to go forwards.
so, if an immigration judge or the board has made a specific finding that an attorney has engaged in ineffective assistance of counsel that would subject them to discipline under these rule. a very common ground that we see all too often are complaints about attorneys who repeatedly fail to appear for scheduled hearings in a timely manner without good cause. unfortunately, we get complaints like this every week. attorneys who fail to appear, there's no notice to the court. it's disruptive to the court preceding and actually delays the ability for the alien have his case heard in front of immigration judge. so we routinely get complaints, unfortunately,
about attorneys who they just don't show up for their scheduled hearings and we're trying to address that on a case-by-case basis. i should also just - going back to the reciprocal discipline grounds for attorneys who have been subject to a final order of suspension or disbarment by a state or federal court. the rule of professional conduct do have a self-reporting requirement. so any attorney who has been subject to discipline by a state or federal court in the form of a suspension or a disbarment is under an obligation to report that misconduct to the disciplinary counsel's office. occasionally, we do have an attorney who does self-report but most of the time we find out about a suspension or disbarment through other means.
so, the new rules that we added in 2009, many of these rules are based on the ada model rules of professional conduct. many of these will look very familiar to most of you, particularly the grounds that deal with competence, diligence, consudent prejudicial to the administration of justice, scope of representation, communication. these are all grounds that are commonplace in every bar in the country and are based on the model rules of professional conduct promulgated by the ada. so you'll see very similar language in the regulations with regard to those grounds. we added a few additional grounds that were particularly problematic in the area of immigration law.
it seemed to us we were getting a lot of complaints, particularly from the board of immigration appeals regarding the last ground on your screen that dealt with repeated filings that indicated a substantial failure to competently and diligently represent the client. in other words, sort of a boilerplate brief type of grounds for discipline or a boiler plate motion. unfortunately, there are attorneys that we've learned about who basically just sort of regenerate the same brief or the same motion, maybe a motion to reopen over and over for, you know, different clients but it's basically the exact same language down to the typographical errors and the font.
so we know that these particular aliens are not being competently represented and their attorney isn't identifying the unique circumstances in the facts of each of their cases and then arguing those cases to the board or to a court. often times these filings don't have any argument, it's basically a restoration of the law and then there's no argument or no application of the law to the particular facts of the case. so, in the case of an appeal to the board there's really nothing for the board to look at because there's no argument, there's no advocacy being made on behalf of the client. the notice of entry appearance grounds for discipline basically just requires that attorneys who are actually representing clients,
representing aliens have to file a note of entry appearance form either the eoir-27 with the board or the eoir-28 with the court. basically this is the ground that we came up with in order to deal with the whole ghostwriting problem that we were seeing. where you could tell that an attorney had drafted this brief or drafted this motion but the alien had signed it and set it off as if he were pro se, when we really was clearly being represented by an attorney. so we require an attorney who's actually representing a client to file the notice of entry of appearance with the board or with the court. so, we'll move on to the next slide which talks about the various types of sanctions.
the - obviously, the most severe sanction would be disbarment, as disbarment is presumptively permanent. however, there is a provision in the regulations that even a disbarred practitioner can apply for reinstatement after one year. it's a higher bar, obviously, for an attorney who's been disbarred to be reinstated but it's very important that - we thought it was important that attorneys had the right to petition for reinstatement and explain why they think that they should be allowed to continue to practice immigration law. there are suspensions either for certain time periods of there is indefinite - an indefinite suspension option. there are public censures that have been issued and then private censures,
which obviously are not available to the public. and then our office issues quite a number of informal admonition and warning letters, which are confidential discipline. these are not reported to the state bar. if anyone calls and wanted to know the history of their - disciplinary history of their attorney we would not reveal the existence of a warning letter or an informal admonition. the only person who is - other than the practitioner who knows about the warning letter or informal admonition would be the complainant himself. so those are confidential and we've been pleasantly surprised at
the effectiveness of issuing confidential discipline. usually when we issue a warning letter or an informal admonition, we don't hear about the attorney again. they understand the error their ways and they comport their conduct accordingly. it doesn't always work out that way. we do have people that we hear about even after we've given them a warning letter but it's a very efficient way of trying to basically educate attorneys about the proper conduct before the immigration courts and the board of immigration appeals. so it's fairly effective way of educating attorneys
without going through the formal process of filing formal charges. the chart on this screen gives you a pretty good idea of how the different types of discipline shake out. obviously, the disbarments are the fewest, which is the way it should be at 14%. the suspensions are at 39% and because of our - sort of our increased educational campaign and issuing informal admonitions and warning letters, those are now surpassing the suspended attorneys. so, you can see that we do spend a lot of our time issuing informal admonition and warning letters to attorneys. the next slide will represent the reinstatements that i just talked about. of the 1077 attorneys who've been disciplined,
92 of those attorneys have petitioned for reinstatement and been reinstated and i think that that's only fair. if you've been disciplined, if you've been suspended and you've sat out your time or you've been able to fulfill the conditions for getting back in early then you should be able to be reinstated and resume the practice of immigration law. so, there was not a provision for reinstatement prior to 2000. so where do we get most of our complaints. well they come from all over. obviously, a lot of the complaints that we receive come from clients, they come from aliens.
a lot of the complaints come from attorneys. these are typically attorneys who may be trying to pick up the pieces of the case from a former attorney and they realize what the former attorney did or didn't do for the client and maybe in the context of a motion to reopen they might file a complaint with our office about the prior attorney's conduct. a good portion of the complaints that we receive at eoir are from immigration judges and the board of immigration appeals. immigration judges know to email us or call us to discuss any kind of alleged misconduct that they may be witnessing in their courtroom, everything from failure to appear to frivolous filings to (unintelligible) conduct to false statements.
so a good portion of the complaints we get come from the judges and the board of immigration and appeals. we have a great working relationship with the department of homeland security and we work with them when they become aware of misconduct by practitioners and, of course, the state bars. we are a member of the national organization of bar counsel in which every state bar in the country is a member and we work very closely so as not to duplicate our efforts with the state bars. we help the state bars in their investigations and they help us in our investigations. so it's a great working relationship that we have with the bars. there is a particular complaint form, which is the eoir form 44,
which you can find on the eoir website. this is the practitioner compliant form; it's not a required form. it's basically more for the general - for the use of the general public. we'll take complaints on notebook paper or, you know, pretty much any form - format. but the eoir 44 form is an actual form that we created when we assumed responsibility for the attorney discipline program in 2000 and it's easily found on the website. so i've sort of alluded to some of these types of discipline, they're basically three types of disciplinary cases.
we have the reciprocal case where the practitioner has already been suspended or disbarred by a state or a federal court. we have attorneys who had been convicted of a serious crime and that definition of serious crime is defined in the regulations. both of those groups of attorneys are subject to an immediate suspension by the board of immigration appeals. this is basically because they've already had their day in court either in a disciplinary matter or in a criminal matter and have been found by another tribunal to have either been subject to discipline or convicted of a crime. so, those attorneys are subject to being immediately suspended by the board of immigration appeals.
and then the last category are original jurisdiction cases where we are the first ones to hear about the attorney's allege misconduct and we will do an investigation and determine whether or not we feel that misconduct occurred. many of these original jurisdiction cases are resolved by issuing the warning letters or the informal admonition that i spoke about earlier. and if an attorney does receive an inquiry letter from us, as a result of one of these original jurisdiction complaints, the best thing that an attorney can do is respond to that complaint. the worst thing they can do is just pretend that it didn't happen and ignore the inquiry letter.
we will write two inquiry letters and give attorneys the benefit of the doubt that maybe they didn't get the first one of they just haven't gotten around to responding. so we do write two inquiry letters before we go ahead and decide what to do with the case without the attorney's participation. but the best thing really is to participate and that goes a long way in our eyes if we can hear the attorney's side of the story and make an accurate determination as to whether any misconduct occurred or whether there were extenuating circumstances. and we're very good at giving extensions of time if 30 days isn't enough to respond.
attorneys call us all the time asking us for a little bit more time and we're glad to accommodate them. so what we do when we first receive a compliant is shown on this slide where we will conduct our own preliminary inquiry with the very first thing we do is write to the attorney and we say we've gotten this compliant about you from a client, from judge, from the board. here's a copy of the board's decision, here's a copy of the immigration judge's decision, here's a copy of the alien's complaint. and we give them an idea about what we think the misconduct might have been and which rules they may have violated.
and we want to know - we want to hear from the attorney and we want to - like i said, we want to hear their side of the story, we want to see what their explanation is because up until that point we've only heard the other side of the story. once we get the practitioner's response, hopefully we do, then we make a determination as to what we need to do. has there be a violation of the rule and if so, how do we want to deal with it. do we want to issue a warning letter or an informal admonition? is this the fourth or fifth time we've gotten a complaint about this attorney and we feel that we need to move on to filling formal charges. these are all things to go into our decision making process of what would be the best course of trying to,
you know, educate this attorney as to why this conduct might be a violation of the rules. so we need to determine the factual allegations, what rule was violated, whether or not it was serious misconduct. and if we determine that we need to file formal charges then we would file a notice of intent to discipline with the board of immigration appeals. and in that notice of intent to discipline, we would include all the information on this slide. we would offer a recommended discipline to the board, what we in our experience think is a fair discipline. it could be anything from a private censure all the way up to disbarment. if it's a reciprocal case, our policy is basically to recommend identical reciprocal discipline.
so if an attorney has been suspended for five years in california, we would ask that the board suspend that attorney for five years. the practitioner has 30 days to file an answer once the notice of intent to discipline is filed with the board. and if there's no answer filed by the practitioner then the board will go ahead and issue its own decision without the attorney's participation under the default provisions of the rule. the attorney files their answer, if they want a hearing they have to ask for a hearing, it's not automatic. and there are certain standards that the practitioner has to meet in order to have a full evidentiary hearing.
and if those standards are met then the case is transferred from the board of immigration appeals to the office of the chief immigration judge at which time an adjudicating official is appointed. and an adjudicating official in most likelihood will be an immigration judge. it's an immigration judge who's been specially trained for this collateral duty. it's an immigration judge who's volunteered for this collateral duty. we have about maybe 12 immigration judges scattered all over the country who are our adjudicating officials and the immigration judge assigned to be the adjudicating official to preside over the case will not be an immigration judge who is
- who previously knows the practitioner or who sits in a court where the practitioner typically practices. so it's a very neutral third party who doesn't know the practitioner at all. the time and place of the hearing is scheduled almost all the time. that will be at the immigration court that is located closest to where the practitioner practices. so, that basically means that i as a prosecutor travel to wherever the attorney's practice, the closest immigration court, and then the adjudicating official will travel. this is for the convenience of the practitioner, presumably this is where the practitioner is - he or she has witnesses will - this is where the witnesses will be and it's most convenient for the practitioner.
so, if there is a full evidentiary hearing then it goes along the course of a regular immigration hearing. there are witnesses, documents, typically the practitioner wants to testify in his or her own defense. if the case involves a criminal conviction as in -- as is the practice in immigration court, we don't go behind the criminal conviction. we're basically looking at what - at really only what will the type of sanction be, we're not going to relitigate the criminal conviction. if it's a reciprocal proceeding where the attorney's already been suspended or disbarred by a state or federal court, the practitioner has the rebuttable presumption as to culpability pursuant to the supreme court case in selling vs. radford.
those factors include the attorney has to show that the underlying disciplinary preceding was lacking in notice or that there was such an infirmity of proof in establishing professional misconduct that the adjudicating officinal couldn't rely on the underlying proceeding or that it would be a grave injustice to impose discipline. those are all very high standards and in my experience difficult to prevail. but, those would be the standards in order to get a full evidentiary hearing in a reciprocal preceding. when the adjudicating official issues the decision typically they - the immigration judge takes it under advisement.
it may be several months before you get a final order and then the practitioner has 30 days to file his notice of appeal with the bia and that's on a form eoir 45, which looks very similar to the regular appeal form. and it goes along in the same way that an immigration case would. the transcripts are ordered, the briefing schedule is set, we've never had an oral argument in an attorney discipline case but i suppose that's just a matter of time before we get to do that. then the board will issue its final administrative order and there is the opportunity, of course, for judicial review in federal court.
and we've had several cases go to federal court. at this point, i do want to answer a question that i get quite often about the attorney disciplinary program, that is why does this disciplinary program even exist. every attorney has obviously admitted to a state bar somewhere so they're bound by their own state bar rules of professional conduct so why is the federal government even in the business of disciplining private immigration attorneys. and basically the answer to that question comes out of ninth circuit decision (unintelligible) (bogart) that where the holding basically from the ninth circuit said that even though an immigration attorney might be suspended or disbarred by their state bar,
they're entitled to some level of due process at the federal level which requires notice and opportunity to be heard. so we give them that due process. the summary of the (bogart) case basically is that (mr. bogart) was suspended in california based on a criminal conviction and that enough initiated disciplinary proceedings against (mr. bogart). and then they promptly reversed course and decided to terminate the proceedings because they were basing that argument on the fact that (mr. bogart) no longer met the regulatory definition of attorney because he was no longer a member in good standing of a state bar. so the ins said well we don't really even need to do anything because he can't meet this basic definition. but (mr. bogart) objected basically saying that he never had his day in court,
he never had an opportunity to defend himself against the charges, he was just sort of unilaterally suspended. and the ninth circuit agreed and they concluded that (mr. bogart) had a constitutional right to a hearing before the agency, before being denied the right to further practice before the agency, department regulations to the contrary notwithstanding. so (mr. bogart) finally got his day in court. but that's basically the reason why we have this program is that we can't just rely on a state bar order or a criminal conviction; we have to give the attorney an opportunity to be heard before the agency.
these cases here are fairly old precedence decisions. these were before eoir took over the responsibility for the program in 2000. the other case on this list on your screen, matter of (spiro) was another interesting case. (mr. spiro) was convicted for his involvement in sham marriages and he was suspended in california, maryland, new york, and rhode island. but he continued to participate in this sham marriage business and he also continued to practice law and he was submitting what were at the time g28s which is the - what dhs still uses. cis, we now use the er28, but it's still the form.
he continued to submit those saying that he was a member in good standing in california and new york even though that wasn't true. so the board concluded in that case that an attorney who was filing a g28 had a duty to disclose any disciplinary actions in jurisdictions other than those in which he claims to be in good standing. the board basically said that it relies on attorneys to disclose on the g28 when they're no longer eligible to appear in immigration proceedings or to simply refrain from appearing as long as the eligibility exists. so i think that's an important rule because don't have an immigration bar per se.
you're not admitted to an immigration bar, you don't take a test, or you're not sworn in or any of that. we're basically relying on each individual attorney to be forthright and honest with their status in their state bars and the g28 requires that attorneys be honest when completing those forms. this next slide is just sort of a compilation of the post-rule published decisions that the board has issued. and the one here i think that's most important is the very first one. (mader gada) was the board's first public decision after the new rule and i think the reason that this is important is for the principle that was upheld from the board through the district court and all the way to the 9th circuit.
mr. gada argued that he'd been disbarred in california and he argued that california lacked jurisdiction to suspend him or ultimately disbar him from practice because he only practiced immigration law notwithstanding the fact that california gave him his law license. he was arguing that california didn't have jurisdiction to suspend him because he was strictly an immigration lawyer. the board dismissed his argument and found that there was no basis for arguing that he was not under the jurisdiction of the state bar of california simply because he practice immigration law and so the board's reciprocal disorder was valid. he appealed to the circuit court
- the district court and the circuit court and lost in both of those forums. so we relied on california bar order and that was upheld. we do have a list of all of the discipline practitioners on the eoir web site at this link here. if you are on the eoir home page, you will find the action center block on the right side of the screen. you'll find a link for find legal representative. if you click on that link it will take you to another series of links and the one you want to click on is the list of attorneys and representatives who are currently ineligible to practice immigration law and there are actually two lists.
there is a list of currently disciplined practitioners and there is a list of previously disciplined practitioners. so if anyone is interested in knowing whether their attorney is currently disciplined or has ever been disciplined both of these lists will give you the information that you're looking for. the dates on these charts are actually hyperlinks to the board's actual order. so you can click on the hyperlink and you can actually see what the board said and what the basis for the discipline actually was. and these lists are constantly being updated whenever orders are issued and they're also available via twitter. so in (signing) up here, the future of the program we are always educate the public.
we speak at (ala) conferences. we speak at the national organization of bar council conferences. we're, you know, happy to do that under the current restrictions of our budget. we try to reach out to practitioners. we created the adjudicating official core which didn't exist before and we're now moving on to attorney registry as one of our goals. so that pretty much sums up my presentation. i have one program specialist who assists me. i have two attorneys within the office of the general counsel who help me on a part-time basis
and i'm happy now to open it up answer any questions. lauren alder reid: : and operator we'll wait to open just yet. first we'll see if anyone in the room - we'll give everybody a shot at one question before we open up the phones and of course we can come back to you during the discussion as well. any questions on the floor (unintelligible)? yes, mr. (horton). mr. (horton) i'm (unintelligible) politics (unintelligible) lawyers. i'm curious as to the percentage of original activities, investigations, or whatever as opposed to the total (unintelligible) of disciplinary (unintelligible) secondhand
so they also (unintelligible) the decision rather than the (unintelligible). i'm curious (unintelligible). lauren alder reid: : so mr. (horton) are you asking whether what percentage of the disciplinary actions are - were originated? mr. (horton) yes. lauren alder reid: : okay. jennifer barnes well let me answer that in two parts. of the cases where formal charges are filed where a notice of intent to discipline is filed, the vast majority of those are certainly reciprocal discipline cases and attorneys who have been convicted of a crime. we have initiated several cases of original jurisdiction cases
that we have filed formal charges on, but those are in the minority. but we will do it when we need to. we try to address them as conduct through confidential discipline, but if push comes to shove and the only way to get an attorney's attention is to actually go through and file formal charges we will do that. but with our limited resources we have to be - we have to pick and choose the cases that we prosecute because there's only one of me and two part-time lawyers. so i have to use my resources wisely and usually when you're filing a notice of intent to discipline and an original jurisdiction case, you're looking at several years of litigation.
mr. (horton) who decides (unintelligible)? jennifer barnes well we decide in our office which cases to prosecute but the board of immigration appeals is the arbiter. they're the tribunal that we take the case in front of or adjudicating official if we get to that point. mr. (horton) thank you. lauren alder reid: : anyone else in the room? man yes i've got a question (kind of two part). i was wondering what percentage of the cases (unintelligible) jurisdiction what percentage of those (unintelligible)?
and also how do you measure (unintelligible) lawyers (unintelligible) make an assumption? lauren alder reid: for those of you on the phone the question is what percentage of the cases eoir are subject to confidential disciplines and how does eoir gauge the effectiveness of the confidential discipline. jennifer barnes i guess it's very anecdotal, but i guess in our line of work no news is good news. i mean if we don't hear complaints back from judges, or the board, or clients about this particular attorney i, you know, one can only assume that, you know, if they were engaging in misconduct somebody would tell us. i mean there's no way to really know that. maybe they've gone to the state bar instead and or they've dealt with their issues through a non-practice lawsuit
or any other one of a number of ways to try to resolve an issue with your lawyer. but i guess the positive way of looking at it is if we don't continue to get complaints about a lawyer then, you know, we're hopeful that that means that they've gotten the message and learned, you know, from their mistakes. but it's really i guess the glass half full approach. as far as the percentage of cases that result in warning (honors) is that what your question was? man (unintelligible). jennifer barnes original jurisdiction, how many result in discipline. a lot. i mean, you know, we... man is that primarily (unintelligible) discipline?
jennifer barnes yes. i mean we - don't get me wrong, we have a lot of cases that come in as what we would call undocketed cases where, you know, a client might be asking us to help them get their (nap) certificate or help them get their money back from their lawyer or something that we don't have the regulatory authority to do. they might be complaining to us an attorney who's already been disbarred. so there are a lot of complaints we get that we, you know, can't - there's not a remedy for every wrong and we can't help a lot of people with some of those issues that they have. but of the cases that are docketed cases in which there seems to be viable complaint that might be actionable, the vast majority of those cases do result in some level of discipline otherwise we wouldn't docket the case and go forward if we thought there was nothing there, we wouldn't docket the case.
but if we docket it it's because we think that there's something there and typically we do find misconduct. man (unintelligible). how that breaks down (unintelligible) discipline (unintelligible)? jennifer barnes the most - the majority of those will result in confidential discipline. i mean we have a policy of progressive discipline. we would very rarely straight out of the box file a notice of intent to discipline against an attorney. i mean the changes are that that attorney has probably received two, three, maybe four warning letters or (inform admonitions) of confidential discipline from our office, and when we get the feeling that maybe our message isn't getting across then we'll file a notice of intent to discipline. but it's not just straight out of the box.
i mean we do try to do a progressive discipline because that's the best use of our resources and it's the best way we feel to educate attorneys about, you know, what's misconduct and what's not permissible. so i hope that answers your question. lauren alder reid: any other folks in the room? man (unintelligible) authority you have to find any information about the practitioner, you know, (unintelligible)? jennifer barnes no we really don't. i mean we don't have a provision to deal with trust account violations. if we get a complaint like that, we have to refer that to the state bar and let them do it because they're in a much better position to subpoena bank records
and interview the attorney because they're there locally. so we don't usually get involved in those kinds of complaints. but if we get a complaint like that we would work with the state bar. man (unintelligible) you still have some kind of (unintelligible) records or documents for your (unintelligible)? jennifer barnes we haven't really had to do that. i mean basically what most of what we're relying on is what's happened in the immigration court which is all in the record of proceeding or what we hear on the digital audio recording. so that's basically where we go to get our evidence from the record of proceeding, from the hearing, the digital audio records of immigration records,
or from people who witnessed the misconduct - anyone at the court or the client. but we haven't really had the need to go much beyond that circle. lauren alder reid: okay. well operator, we'll go ahead and open the phone lines. coordinator: thank you. to ask a question press star 1. the system will prompt you to record your name and please record your organization. once again to ask your question press star 1. one moment please. (richard brateman), your line is open.
(richard brateman) yes, a couple of things. first of all the email or the web site that you provided for the list of attorneys is not the one to go to. the one to go to is www.justice.gov/eoir/discipline.htm. i was wondering if you have by your experience any knowledge as to whether or not those immigration judges and most of them i assume are licensed attorneys are at all subject to discipline before the state bars based upon their work in immigration work. jennifer barnes well immigration judge is a licensed attorney. that's a requirement of the job so every immigration judge is subject to their own state bar rule. and the (unintelligible) responsibility regulates all department of justice attorneys
which would include immigration judges. (richard brateman) and a second question if i might. what percentage of cases have you found no violation? jennifer barnes of the cases that we docket where we believe that there's prima facie evidence of a disciplinary violation, i would say that probably 90% of those cases result in some of confidential discipline. (richard brateman) thank you. jennifer barnes you're welcome. coordinator: to ask a question press star 1. (nelson castillo), immigration attorney. your line is open.
(nelson castillo) thank you for holding this seminar. i have a number of questions. i was reading the original email that came through that this is going to be a discussion about professional conduct rules for immigration attorneys and representatives. i understand that. (but heard correctly) that's it been mostly a discussion about the attorney side. so i have some questions. i have two questions - i have a number of questions. but the first question was about the presentation and i wanted to get clarification about how you go about determining a fee to be exorbitant. i know that you put that on the slide.
and then there's a number of other questions i have about - i'd like to hear more about the creditor representative program because i am in los angeles and there are a good number of creditor rep centers here and those are attached themselves to be a creditor representative (base). and i would be very interested in hearing how you go about monitoring the creditor representatives because i have some serious issues with a number of them here in los angeles who are not listed on the roster of accredited representatives. they haven't been for quite some time now. in my opinion practicing law unlawfully. ((crosstalk))
(nelson castillo) and i wanted to know - i would like to hear about that. lauren alder reid: thank you. mr. (castillo), this is lauren. i'm going to stop you just for a second. this presentation is not about the recognition and accreditation program today. we hope to have an event in the future that will focus n the r&a program and we'd be happy to entertain your question during that presentation or offline at the email address or phone number that i provided at the beginning. but i'm sure that ms. barnes would be more than happy to answer your question regarding the excessive fee. (nelson castillo) all right. and the reason why i ask that question ma'am and again i'm going by the email that you wrote to all of us
that i got the instructions to login and it talks about both attorneys and representatives. i wouldn't be wasting your time in asking the question... lauren alder reid: yes and i understand your question and i appreciate that you've taken the time to join us today. however like i said the presentation is not about the recognition and accreditation program today. but if you have questions... (nelson castillo) okay. lauren alder reid: ...about it, i'd be happy to take them by email or phone offline. (nelson castillo) sure. okay.
so then as a follow up to the - just the attorney side could you further go into the statistics? could you further describe if you keep statistics about the total attorney complaints that have been filed, the total number of complaints currently pending, and i think that - and the question i think already asked about how when all the attorney complaints are filed what percentage of those result in discipline. if i heard you correctly you said 90%. jennifer barnes we have two categories of cases. we have undocketed cases and docketed cases. undocketed cases are ones where at first blush it doesn't appear as if our regulations would cover the misconduct that's being reported.
certainly when we get more information an undocketed case may become a docketed case, but generally speaking undocketed cases don't result in any kind of discipline. docketed cases are ones where there does seem to be prima facie evidence that one or more of the rules have been violated. and of those as i said i would venture to say that probably close to 90% of those docketed cases result in some sort of discipline. i can't tell you the exact number of complaints that we have had filed over the course of the last 13 years nor can i tell you the exact number of cases that we have pending. but i can tell you that as a general rule we probably receive on an average approximately 400 complaints a year. and now again i can't tell you exactly how many of those are undocketed versus docketed because i don't have the ability to run that kind of a report.
but of the docketed cases a very high percentage of those do result in some sort of discipline typically just a confidential discipline in the form of a warning letter. (nelson castillo) and the other - i would if i may as a follow up, i would highly recommend the statistics be kept as much as possible. i have a great interest in making sure that our profession is as ethical as possible and it doesn't take advantage of anybody and we should know - we should be able to know not only the public, but also we who the bad apples are out there and it's good to monitor. and we of course want - and i would love for you to have more resources if you are having an incredible number of complaints, 400 and you don't have the necessary staff. i would love for you to investigate each one of those fully and prosecute them fully
because it's a shame if we do have any member of the bar who is taking advantage of the public. as a final question as i mentioned the exorbitant fees could you expand on that and could you tell us what do you mean by that? jennifer barnes fortunately we haven't had to rely on that ground of discipline very often. but it is set forth in the regulations what criteria we use to determine whether or not a fee is grossly excessive. to date we've really only applied that ground of discipline when a client has paid a large sum of money to an attorney and has gotten virtually nothing in return. i think that's clear that if you pay someone $5,000 and they do nothing for you that that would be by definition a clearly excessive fee or a grossly excessive fee.
we haven't had to apply a lot of the criteria in a more sophisticated way because we just don't run into that type of a complaint all that often. ((crosstal)) (nelson castillo)again i want to thank you. thank you again for your answers ms. (barnes) and for holding this program. thank you again. lauren alder reid: i'd also like to add, this is lauren again that in addition to outreach events such as this one being a priority for our director (juan osuna) also the unauthorized practice of immigration initiative that this agency along with federal partners launched in the summer of 2011 is also something of great interest to him.
and we agree with mr. (castillo) that there needs to be a crackdown if you will on bad actors such as an (unintelligible) and the agency along with our federal partners to do what we can with the resources available to us to continue to work towards helping rid us of some of those bad actors. operator are there more... lauren alder reid: all right. coordinator: to ask a question press star 1. (susan brautman), your line is open. (susan brautman) hi, ms. (barnes). my name is susan brautman. i want to know if your docketed cases are confidential or public? jennifer barnes everything in our process is confidential up until if and when a notice of intent to discipline is filed.
so anything up until that point in the process is confidential - the complaint, the disposition. the only person other than the practitioner who is informed about the out come of the complaint is the complainant. (susan brautman) okay. i think i understand that. the other question i have is about one of the aspects of misconduct you said you've come across most very frequently at least is the failure of attorneys to appear on their matters. is there any criteria for how often - how many failures to appear is disciplinable or is it on a case by case basis? well the regulations state that there needs to be repeated failures to appear. so we take a pretty (unintelligible) view of that and we define repeated as more than once.
so if it's two or more failures to appear that's a potential violation of the rule. however without a doubt complaints that we receive about attorneys who fail to appear are always handled by either confidential discipline as in a warning letter. or if we do get a complaint about a single failure to appear we will write to that attorney to let them know that we are aware of their failure to appear. we're interested in finding out why they didn't appear. we want to educate them that not appearing before the court for a scheduled hearing is not acceptable, but we will dismiss a single failure to appear because it hasn't been repeated. but we want to take the opportunity when we hear about an attorney
who's failed to appear to educate them about their responsibility to appear. (susan brautman) i understand. thank you very much. coordinator: to ask a question press star 1. and at this time i have no questions in queue. lauren alder reid: if there's anyone on the phone who wishes to ask a question, we encourage you to do so now. we'll wait approximately 30 more seconds for you to press star 1 as the operator indicated. and if there are no more questions we will turn back to the room to see if there's anything further before ending the call. coordinator: (daniel sharp), your line is open. (daniel sharp) yes. i wanted to ask what eoir would consider sufficient evidence of a criminal relationship
with a no (tardio) that would give rise to discipline. for example would evidence of receipts for court appearances paid to a no (tardio) that are interspersed with hearing notices where an attorney appeared in court be sufficient evidence generally to discipline an attorney for a relationship with a no (tardio)? and just from our perspective that is sort of the worst of the violations and one that we would encourage strong discipline for. jennifer barnes well obviously we'd have to look at everything on a case by case basis. the provision that deals and the rules that deal with the unauthorized practice of law makes an attorney subject to discpline if they assist a non-lawyer in the unauthorized practice of law. so it's a very fact specific situation.
it's not easy to prove. i don't have an investigator on my staff that can provide me with the expertise and exactly how to investigate that type of complaint. so it's very difficult to establish a relationship between an attorney and a non-attorney. typically we rely on the various state bars to assist us when we get that sort of complaint. more often than not the state bar is aware of the situation and may already be investigating the attorney for such things as fee splitting with a non-lawyer or other violations that the state bar rules. it's a very difficult area to investigate and fortunately we haven't had too many complaints regarding attorneys who are assisting others in the unauthorized practice of law.
that doesn't mean it's not happening. it just means it's not really one of the more prevalent areas that has come to our attention. but there are certainly a lot of other means of starting with state bars, state attorney general's office. we have our own fraud program here at eoir that deals with complaints about the unauthorized practice of law. so there are other entities and other offices that might be in a better position to investigate that type of complaint. and just in the case of california, the state bar and law enforcement generally do not invest any resources in looking into this and that's why i asked basically for your guidance on when the public or attorneys or recognized agencies are going to file complaints what kind of evidence. and it would be helpful for us if you would give guidance possibly on the web site
or in some other way on what kind of evidence we can put together because we're aware that the california state bar rarely investigates these things and we know that you have limited resources. and at least in the los angeles immigration court it is a very prevalent problem. there are hundreds of no (tardios) operating in the los angeles area and each one has an appearance attorney that represents clients in court. lauren alder reid: thank you. coordinator: i have no further questions in queue. lauren alder reid: okay, this time we'll wait a little bit less time about 10 seconds until i finish this statement. ms. (barnes) did mention your twitter account.
if you want to follow up on twitter and get the names of the attorneys who have been disciplined or changes in disciplinary status, you can follow us at hash tag do - i'm sorry not hash tag, at doj_eoir. operator are there any other calls? coordinator: i have no questions in queue. lauren alder reid: any other calls from people in the room or any other questions rather? man i have a question. if someone files - an attorney files (unintelligible) will that automatically get referred to your office (unintelligible)? lauren alder reid: the question is whether a motion for ineffective assistance of counsel reopen would get referred directly to ms. (barnes) office. jennifer barnes i'd like to think that it would because every week i get complaints
that are referred and forwarded to me from the board of immigration appeals and i do believe that the staff attorneys at the board of immigration appeals are aware of their ability to refer a case to my office for review. and i do get a number of cases forwarded to me from the board where there has been an allegation of ineffective assistance of counsel and the board has made a finding of such. man (unintelligible) see that (unintelligible). jennifer barnes well basically that's sort of an intra agency procedure so the board has its own procedure for referring cases to my office and you would have, you know... man...i thought you mentioned earlier (unintelligible). jennifer barnes that's basically the form that's used for the general public.
man right. jennifer barnes but if an immigration judge or the board of immigration appeals files a complaint with my office, it typically is not on form 44. i mean it can be, but it's more of an internal process. lauren alder reid: are you wondering whether an individual attorney when filing a motion to reopen could also file 44... lauren alder reid: in other words to make sure that his case is heard in your office and not depend on our internal (process). jennifer barnes oh yes, of course. i mean i might get the referral from the board and then i might get the complaint from the second attorney i guess you might say who's helping the alien with the motion to reopen. so yes i might get it twice and that's okay too.
man (unintelligible) in very broad terms. what do you find in your (unintelligible) problem that comes your way? lauren alder reid: the question is what is the largest or problem or most common problem that comes your way? jennifer barnes that's a really good question. with regard to original jurisdiction cases, the most - the complaints that we see the most are regarding competence and diligence issues and repeated failures to appear. i think those are the primary areas. we do get, you know, a considerable amount of cases that involve misrepresentations to the court, false statements to the court.
we get a fair amount of complaints about frivolous filings with the court and the board. but a lot of our cases are competence and diligence issues. we have a fair number of complaints that deal with conduct prejudicial to the administrative of justice. so i would say that those are probably the front runners. lauren alder reid: operator are there any more questions that have come in in queue? lauren alder reid: okay. well i think we will end today's presentation and question-and-answer session. again we thank all of you who joined us on the phone or by web. if you're on the phone and you had difficulty with the web access,
please do email or call us and let us know so that we can try to work out those technical issues for future presentations and events. thank you also to those who are in the room for joining us today and we look forward to working with all of you in the future. coordinator: this concludes today's conference. thank you for participating. you may disconnect at this time.
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