Yesterday, the California Supreme Court issued a press release announcing its unanimous decision to rule on the case of Sergio Garcia, an undocumented immigrant law school graduate trying to get admitted to practice law in California.
Unlike Florida’s Bar Examiners who recently faced a similar situation involving undocumented law school graduate Jose Godinez-Samperio, the California Committee of Bar Examiners didn’t leap over their responsibility by asking for an advisory opinion. Instead, after reviewing Garcia’s passing bar examination results and deliberating on his moral character determination, the California Bar Examiners certified Garcia’s admission to the bar.
But after filing their routine motion to the supreme court to have Garcia admitted, the court exercised a prerogative it believes it has and opted instead to unanimously take the decision out of the hands of the bar examiners. The California Supreme Court will decide the matter for themselves – - – and not just concerning Sergio Garcia but with respect to the broader issue of undocumented law school graduates and whether they can practice law in California.
In its Order, the California high court asked that five specific questions be briefed. Clearly, these are more highly focused than the general question asked of the Florida Supreme Court: “Whether Undocumented Immigrants Are Eligible for Admission to The Florida Bar.”
Among the issues the California court wants briefed are:
1. Does 8 USC § 1621, subdivision (c) apply and preclude this court’s admission of an undocumented immigrant to the State Bar of California? Does any other statute, regulation, or authority preclude the admission?
[Note: 8 USC § 1621 is the U.S. Code section entitled, "Aliens who are not qualified aliens or nonimmigrants ineligible for State and local public benefits." The relevant subdivision (c) to be interpreted maintains that nonqualified aliens and nonimmigrants under the Immigration and Nationality Act are not eligible for any "State or local public benefit." The statutory definition of "benefits" includes "the issuance of a professional license to, or the renewal of a professional license." Only foreign national applicants not physically present in the United States are excepted.]
2. Is there any state legislation that provides — as specifically authorized by 8 U.S.C. section 1621, subdivision (d) — that undocumented immigrants are eligible for professional licenses in fields such as law, medicine, or other professions, and, if not, what significance, if any, should be given to the absence of such legislation?
3. Does the issuance of a license to practice law impliedly represent that the licensee may be legally employed as an attorney?
4. If licensed, what are the legal and public policy limitations, if any, on an undocumented immigrant’s ability to practice law?
5. What, if any, other concerns arise with a grant of this application?
The California Supreme Court also directed that by June 18,2012, the Bar Examiners and Garcia file opening briefs in support of the Committee’s motion. The Court also invited others to file amicus curiae briefs in support or opposition, especially from California and U.S. Attorneys General. Highly instructive for proponents would be a close reading of the amicus curiae brief arguments filed in support of Godinez-Samperio in Florida by the Dream Bar Association.
These include threshold jurisdictional questions, preemption, due process, and one that I think underscores the futility of belatedly locking the barn door after the horse has gotten out, i.e., that student-college contractual relationships are circumscribed by the Contracts Clauses of Article I, section 10, clause 1 of the United States Constitution.
This logically leads to the economic waste argument I find so troubling. Why now disingenuously deny a license to practice after having already allowed an undocumented immigrant to take the Law School Admissions Test; enroll in a state accredited law school; take and complete the required curriculum; pay obscene amounts for tuition, fees, and books; graduate; sit for and pass the bar exam; and submit to a moral character determination? And now you want to bar the barn door?
I’ve previously blogged on the topic of undocumented law school graduates and indeed, last month, gave six reasons why undocumented law school grads Cesar Vargas, Jose Godinez-Samperio and Sergio Garcia ought to be licensed.
But since the California Supreme Court has historically had an inordinate amount of influence among U.S. state courts, while not dispositive in those other jurisdictions, those courts tend to pay attention to what California does. Thanks to the California Supreme Court’s announcement yesterday, Sergio Garcia’s case has just taken on a much more momentous dimension.
Hi, I’m really interested in this issue, and am curious where you found the transcript of the court’s order. Is it on Lexis?
Hi John, the five issues enumerated by the court’s order were included in the press release from the California Supreme Court and which was reported by the “San Jose Mercury News” in its story.
See: http://www.mercurynews.com/breaking-news/ci_20639609/state-supreme-court-decide-if-illegal-immigrant-can
A copy of the court order was attached to the press release and is reproduced below:
Bar Misc. 4186
S202512
IN THE SUPREME COURT OF CALIFORNIA
En Banc
__________________________________________________________________
In re SERGIO C. GARCIA on Admission.
__________________________________________________________________
The Committee of Bar Examiners of the State Bar of California is ordered to show cause before this court why its motion for admission of Sergio C. Garcia to the State Bar of California should be granted. The Committee of Bar Examiners and Sergio C. Garcia may serve and file opening briefs in support of the Committee of Bar Examiners’ motion on or before June 18, 2012.
Applications for permission to file an amicus curiae brief, either in support of or opposition to the motion, are invited. Such applications should comply with California Rules of Court, rule 8.520(f) and be accompanied by the proposed brief. The applications should be served and filed no later than 30 days after the filing of opening briefs by the Committee of Bar Examiners and Sergio C. Garcia, or 30 days after expiration of the time for the filing of opening briefs by the Committee of Bar Examiners and Sergio C. Garcia. In particular, the court invites such applications from the State of California Department of Justice, Office of the Attorney General (if appropriate under California Rules of Court, rule 8.520, subdivision (f)(8)), and the United States Department of Justice, Office of the Attorney General.
The Committee of Bar Examiners and Sergio C. Garcia may serve and file answers to the individual amicus curiae briefs, or a consolidated answer to multiple amicus curiae briefs, within 30 days after either the court rules on the last timely filed application to file an amicus curiae brief or the time for filing applications to file an amicus curiae brief expires, whichever is later. Any answer must be served on the amicus curiae.
The following are among the issues that should be briefed:
1. Does 8 U.S.C. section 1621, subdivision (c) apply and preclude this court’s admission of an undocumented immigrant to the State Bar of California? Does any other statute, regulation, or authority preclude the admission?
2. Is there any state legislation that provides — as specifically authorized by 8 U.S.C. section 1621, subdivision (d) — that undocumented immigrants are eligible for professional licenses in fields such as law, medicine, or other professions, and, if not, what significance, if any, should be given to the absence of such legislation?
3. Does the issuance of a license to practice law impliedly represent that the licensee may be legally employed as an attorney?
4. If licensed, what are the legal and public policy limitations, if any, on an undocumented immigrant’s ability to practice law?
5. What, if any, other public policy concerns arise with a grant of this application?
Cantil-Sakauye
Chief Justice
Kennard
Associate Justice
Baxter
Associate Justice
Werdegar
Associate Justice
Chin
Associate Justice
Corrigan
Associate Justice
Liu
Associate Justice
Ersatz legal theater from an uncharacteristically high altitude. Provocative..
[...] admission).And time for the California Supreme Court to say no to people who are here unlawfully.The Irreverent Lawyer has more analysis, but, sadly, that site supports the the admission of these illegal aliens to [...]
My recollection is that you have to be a “legal resident” of California to be admitted to the bar. Does California confer legal resident status on illegal aliens?
Speaking of the contractual claims that might be lodged against the law school for taking money from him without assurance he could be admitted to the bar, what about the contractual and ethical claims that his future clients may have against him if his illegal alien status makes it impossible for him to carry out his duties as their attorney, such as being arrested and deported?
One would assume that it would be impossible for him to legally represent any client before a Federal agency or Federal court, and if his status was discovered after he had done so, he could jeopardize the case of his client, invalidating any action taken by the government. In any dealing with the Federal government, he would be subject to criminal penalties under 18 USC 1001 if he misrepresents his legal ability to represent his clients in a Federal administrative proceeding.
He would also be putting any employer in a bind that wants to hire him, including a law firm, a corporate legal department, or a government agency, who would acquire liability for the later determination that his actions were illegal and thus invalid.
Raymond, I appreciate very much your well-thought out comments. They are thought provoking and worthy of further debate and discussion.
With respect to the admission requirements for admission to the California Bar, they are found at Rule 4.15 Certification to California Supreme Court, http://admissions.calbar.ca.gov/Requirements.aspx ,which states in part, “To be eligible for certification to the California Supreme Court for admission to the practice of law, an applicant for admission must:
(A) be at least eighteen years of age;
(B) file an Application for Admission with the Committee;
(C) meet the requirements of these rules regarding education or admission as an attorney in another jurisdiction, determination of moral character, and examinations;
(D) be in compliance with California court-ordered child or family support obligations pursuant to Family Code § 17520;
(E) until admitted to the practice of law, notify the Committee within thirty days of any change in information provided on an application; and
(F) otherwise meet statutory criteria for certification to the Supreme Court.5
5 Business & Professions Code § 6060.”
(Rule 4.15 adopted effective September 1, 2008.)
My cursory review of the 25 pages of the California Rules does not find anything concerning a “legal residency” requirement.
With respect to obligations to future clients, all lawyers are governed by their ethical rules. See http://www.law.cornell.edu/ethics/ca/narr/CA_NARR_1_03.HTM
While I won’t get into a recitation here of all the ethical rules, foremost are competence, diligence and communication and in this instance, certainly avoiding a conflict of interest with one’s client. If there is any chance that a lawyer may not be able to competently, diligently and fully carry out a client’s representation, then regardless of reason, that lawyer should decline the representation or withdraw. He or she cannot place their personal interests ahead of their client’s.
In the scenarios you put forth, e.g., concerning clients in federal settings and future employers, those may foreseeably arise but a determination ultimately depends on the fact-sensitive client representation as well as the nature of the legal services that will be provided. It’s difficult if not impossible to prognosticate.
It’s also pure conjecture at this point as to how those scenarios might play out in reality. Moreover, given its resources and its current posture targeting criminal illegal aliens posing threats to public safety and not non-violent illegal aliens, I don’t think that a non-violent, duly-licensed lawyer would be prioritized by Homeland Security’s immigration and customs enforcement.
Last, in the final analysis, the immigration status of these undocumented lawyer candidates will ultimately weigh on the type of legal services they may undertake, assuming they are granted admission to practice. And whether or not 18 USC § 1001 is implicated merely begs the question. We don’t know because we’re trading again in unproven hypotheticals.
However, this I can say: the very reason we are even engaged in this discussion is because Sergio Garcia, Cesar Vargas and Jose Godinez-Samperio did not falsify, conceal or cover up the material fact of their immigration status.
- Mo
[...] weighing whether he has the right to be licensed to practice law. Meanwhile the legal community is watching this decision closely, making Garcia's case a potential precedent-setter in a state that holds considerable [...]
[...] Executive Order is more “Dream Act-Lite” than Dream Act. But of the stalled Dream Act, I still say it’s inane to lock the barn door after the horse has gotten out. This is why I support the Dream Act and agree in particular, with that pundit who asked, “We [...]
I am looking for more information on the Florida case that skirted the issue. Would anyone know anything of it or if there is precedent for this in Florida
Angela
Thanks for your comment and question. The issue in Florida is still pending since the Bar there punted to the Court for a ruling, i.e., “an advisory opinion.”
For more recent updates, however, also see:
http://www.miamiherald.com/2012/08/09/2947363/florida-bar-immigrant-not-disqualify.html
and
http://lawreview.law.miami.edu/deferred-action-affect-undocumented-immigrants-ability-practice-law/
and
http://usnews.nbcnews.com/_news/2012/04/24/11369925-can-an-illegal-immigrant-become-a-lawyer?lite
Otherwise, it’s just another one of those ‘hurry up and wait’ situations.
- Mo
[...] then there’s the still pending case of law school graduate Sergio Garcia who can’t practice law in California without a law license but who can’t get licensed [...]