Immigration lawyers: Should you respond when another attorney notifies you of their intention to file motion based upon ineffective assistance under Matter of Lozada, 19 I&N Dec. 637 (BIA 1988)?
O ne of the scariest moments of an immigration lawyer’s career can be receiving what I call a Lozada threat letter. Under Lozada, “before allegations of ineffective assistance of former counsel are presented to the Board, former counsel must be informed of the allegations and allowed the opportunity to respond.” Id at 639.
You should consider responding to the threat letter for at least a few reasons:
- You might be able to avoid receiving an ethics inquiry from disciplinary authorities altogether if they read your response and are satisfied with it.
- It's your only chance to defend yourself in the client's proceeding against an ineffective assistance of counsel claim. Without a finding of ineffective assistance, there is no violation of 8 CFR 1003.102(k).
- Defending oneself has at least a chance of convincing the new lawyer that there was no mistake made. In fact, in casual conversation recently, a lawyer told me that just such a letter prompted him to delay filing an ethics complaint and ineffective assistance claim until he received FOIA results.
B ut there are risks to responding to this initial letter, including, but not limited to, the following:
- Revealing too much information under applicable confidentiality standards.
- Providing information and explanations during the often very limited timeframe provided to respond, which may later require correction, for example, when an ethics complaint is received and additional work reveals a prior misstatement.
For clarification, none of this is to say that you should consider avoiding a response to the ethics complaint itself. If a complaint from a disciplinary authority arrives, deal with it immediately. Your first call should be a trusted ethics lawyer to discuss your options. Lozada complaints are unique in the legal world - only immigration attorneys are plagued with them. Being able to help my fellow lawyers through this dicey situation is why I became an ethics attorney. No one should navigate these waters alone, and everyone deserves a good night’s sleep.