On June 17, 2015 Governor Brown signed legislation amending the Business & Professions Code in regard to when an attorney can accept advance payment of fees for professional services arising from an immigration reform act. The new law also specifies the steps which must be taken by an attorney who has already received fees for such services.
I will offer my analysis of the new law, also known as AB 60, as it relates to attorneys (there is a separate component which deals with immigration consultants, i.e., non-lawyers who cannot give legal advice and whose activities are generally limited to form preparation), though I must admit to having serious doubts about the motivations behind the bill.
Business & Professions Code sections 6240 and 6242 have been amended in a couple of key respects. First, the definition of "immigration reform act" ("IRA) has been expanded to include any act of Congress, or any executive action on immigration issued on or after November 20, 2014, whose purpose is to authorize an undocumented immigrant, including those persons who entered without inspection or overstayed their visa, to attain lawful status in the United States. The State Bar of California is required to announce and post on its web site when an immigration reform act has been enacted.
The legislation further revises the definition of "immigration reform act services" (IRAS) to mean those legal services which are exclusively for the purpose of preparing an application and other related initial processes so that an undocumented immigrant can attain lawful status or otherwise remain in the United States. The new law also carves out an exception for services which have an "independent value," including those services which are for the purpose of preventing a person from being removed from the United States, and other action adverse to a person's ability to remain in the United States, and services related to helping a person apply for post-conviction relief.
The new law also amends section 6242 to prohibit an attorney from demanding or accepting a payment of advance fees for IRAS before the earlier of the enactment of an IRA, when the relevant form is announced and is not subject to pending legal action, or the date Department of Homeland Security announces it will begin accepting applications. Attorneys are forbidden from demanding or accepting a payment of advance fees for requests for expanded Deferred Action for Childhood Arrivals ("expanded DACA") and Deferred Action for Parental Accountability (DAPA).
The new law also mandates that payments of advance fees received by an attorney after October 5, 2013, but before enactment of an IRA, be refunded to the client promptly, but no later than 30 days after receipt, or placed into a client trust account and either refunded or used no later than January 20, 2017. An attorney who received fees for IRAS before the effective date of the amendment and who performed legal services is required to provide the client with a statement of accounting describing the services rendered promptly, but no later than 30 days after the amendment's effective date.
Finally, an attorney who received fees for IRAS and did not perform services before the effective date of the amendment is required to refund the fees or deposit them into a client trust account and give the client a written notice in English and the client's native language which informs the client (1) that no benefits or relief are available until enactment of the IRA, (2) that it is unlawful for an attorney to demand or accept a payment of advance fees before the enactment of an IRA, and (3) where to report complaints (e.g., Executive Office for Immigration Review or the State Bar) and the website addresses and toll-free telephone numbers of those entities.
There is more than a little bit of irony in the fact that the California legislature has decided to usher in its own consumer protection laws to address future acts of Congress that, given the political climate in Washington, seem more speculative than concrete. The DHS Secretary's executive actions regarding DAPA and expanded DACA are mired in litigation and have virtually no chance of being implemented soon. Against this backdrop, I believe the new law will have little impact on preventing immigration scams. If an attorney, or immigration consultant for that matter, is going to take somebody's money and run, then that will happen regardless of when an IRA is enacted.
Meanwhile, the new law perpetuates the harmful stereotype of undocumented individuals as being economically powerless and therefore deserving of greater protections than those already afforded to people who have the need to consult a lawyer. Why should the immigration bar and their clients have to play by a different set of rules than criminal defense or bankruptcy attorneys and their clients? Or are the rules changing for everybody?
I suspect that AB 60 will only impair the ability of undocumented individuals with complex immigration problems, such as those facing imminent deportation, to access qualified legal counsel. Furthermore, by depriving the consumer of the flexibility to negotiate the terms and conditions of legal representation, including the all-important timing of representation, I fear that the new legislation will force undocumented immigrants into the waiting arms of notarios, who are the least accountable but do the most damage by far. The ability of undocumented immigrants to access qualified immigration counsel when they need it has now been severely restricted. Does anybody have a problem with that?