HALAMAN SELANJUTNYA:
Editor’s Note: Every first-year law student learns the essentials of contract law—an offer, acceptance of the offer, a lawful object, and consideration. By the time many law school graduates are out in practice, the essentials about a meeting of the minds, mutual consideration, performance, and delivery vaporize amid the everyday exigencies of day-to-day practice. Between marketing a practice, memorizing the latest amendment to the Federal Rules of Evidence, and going to trial, a vital step must be taken between lawyer and client, and that’s the engagement letter and fee agreement. The agreement memorializes the terms of hire.
What is an engagement letter? It’s a document directed to the client, signed by both lawyer and client, reduced to writing, setting forth the exact duties of the law firm, the lawyer, and the client. The agreement identifies what the lawyer will—and won’t—do for the client. Generally created after the initial conference with the client, during which a tentative agreement has been reached, the engagement letter identifies the nature of the problem (e.g., a criminal case or personal injury matter), names the expected adverse parties, and may set forth the date of the incident to serve as a trigger for statutes of limitation. Setting the parameters of the attorney-client relationship, it can define when it begins and when it ends, what happens during the process, and even how materials received by the law firm will be stored and destroyed.
It’s about the money, honey, describing how fees will be set (e.g., an hourly rate, a flat fee, a contingent fee, etc.), what other expenses will be paid, an estimate of the fees, a deposit of funds, how withdrawals from a trust account will be made, and what happens when the till runs dry. If someone other than the client has agreed to pay the fee, then a separate agreement to guarantee payment of fees is necessary. The agreement can provide how fee disputes will be settled, even providing an escape clause permitting the lawyer to withdraw if fees aren’t paid.
The agreement can outline the obligations of both the client and the lawyer. The lawyer can agree to promptly return all phone calls within 24 hours, correspond on a regular basis about the progress of the case, and provide court decisions promptly. The client may agree to promptly return all phone calls, respond to all correspondence, cooperate with the lawyer, meet with the lawyer when requested, and advise the lawyer of any changes in his or her situation. Clients rarely retain lawyers for unimportant, insignificant, paltry matters, so the engagement letter should be treated with at least as much importance as that given to the purchase of an engagement ring or new car. Give the client the opportunity to think about the engagement letter overnight. Answer any additional questions the client may have. Provide a duplicate of the signed agreement to the client.
Just as important are non-engagement letters to send a clear signal to the would-be client that the lawyer isn’t representing him or her. The non-engagement letter can take many forms—for situations ranging from “We’ve researched and examined your case, but we’re declining to take it,” to a conflict of interest, to “We haven’t heard any more from you since the time you dropped by the office.”
The disengagement letter is used when a lawyer wants to leave the relationship for some reason, mostly commonly nonpayment of fees. A letter declining further representation warns a client who’s dropped from the radar that the lawyer will be closing the file unless he or she hears otherwise, and it also warns the client that deadlines may loom. When the purposes of the engagement letter have been fulfilled and the job’s done, a closing letter finishes off the relationship and officially closes the file, telling the client what happened and how the files will be stored.
While there’s no set format, an engagement letter should leave nothing to memory or chance. Not only invaluable protection in case of ethical complaints, it also shows the client that you take your relationship with the client seriously.
In the pages that follow, P.A. Henrichsen, a lawyer in West Des Moines, Iowa, shares his form engagement, non-engagement, disengagement, and closing letters with you. Adapt these to your practice and your clients’ needs.
Last Friday was a depressing day for me. A businessman and his daughter visited me in my office. When I asked how they had learned about our law firm, they said a lot of flattering things about how "famous" we were and about our "great" website.
However, when I analyzed their case, it quickly became apparent to me that nothing could be done to help them. It was too late. The man's I-140 (EB1-3) which was submitted in April 2001 had been denied, and his former attorney had advised them not to appeal, but to have the employer file a new I-140. The new I-140 was also denied as were their I-485s. Since the man's L-1 status had long since expired, his whole family had been placed under removal proceedings.
His present lawyer had advised him to have his employer submit a 3rd I-140 on his behalf and for him and his family to file new I-485s on the basis that he was eligible for adjustment of status under section 245(i).
Suddenly, I became the bearer of bad news: "Sir, you are ineligible for benefits under section 245(i). Your initial I-140 was denied because the INS concluded that you were not an executive or manager, that the foreign and domestic companies were unrelated and that you were not being paid at the proferred wage. Furthermore, your employer did not appeal the I-140 denial. So, what is your argument that the I-140 meets the 'approvable when filed' standard for section 245(i) eligibility?"
Yet, both his previous and present attorneys were in agreement that he was covered under section 245(i). I told him that I disagreed, and therefore, could not take his case. He and his daughter left my office disappointed.
Every potential client that I saw on Friday had a similar story, and it was too late to repair any of their damaged cases. In my opinion, each of them will have their cases denied by an Immigration Judge. What's more, they will pay other attorneys many thousands of dollars only to lose their cases, appeal them to the BIA, and then lose again. Eventually, these unfortunate people will be ordered to either leave the United States "voluntarily" or face deportation.
COULD THESE RESULTS HAVE BEEN AVOIDED?
Absolutely!
Section 245(i) has been on the books for over 15 years. All immigration attorneys should be able to properly analyze the facts of a case, and advise a client whether his I-140 complies with the "approvable when filed" standard under section 245(i).
But how is a person supposed to know whether an immigration attorney is giving him good advice? In fact, how does a person go about selecting a good immigration attorney to represent him?
There are over 11,000 members of the American Immigration Lawyers Association (AILA). Some are excellent attorneys, others are so-so, and more than a few are absolutely terrible. All immigration attorneys are not created equal. How is an immigrant, untrained in the intricacies of the law, supposed to select a competent attorney?
CERTIFIED SPECIALISTS IN IMMIGRATION LAW
Immigrants frequently choose attorneys just because speak their language or are from the same country as they are. Many Chinese choose Chinese attorneys; Filipinos tend to select Filipino attorneys, etc.
Some immigration attorneys have built huge followings by blanketing ethnic newspapers with ads touting their successes. Other attorneys, including Yours Truly, are known largely through their websites.
However, speaking a particular language, running big ads or having a popular website is no guarantee of quality. Expertise and experience are far more important than "self-advertised or paid" prominence.
In my video, I stress one important criterion that is nowhere mentioned in the section of the USCIS website entitled "Finding Legal Advice" or in the ads or websites of most immigration attorneys.
A number of states put attorneys through a rigorous system where they must pass a difficult examination regarding the intricacies of immigration law, require that they have a certain amount of experience in various facets of immigration law (employment-based, family-based, asylum, deportation defense, etc.) and obtain recommendations from their colleagues. A committee checks to make sure that the attorney is in good-standing with the bar association. Only then can an attorney be deemed to be a Certified Specialist in Immigration Law.
Several years ago, I had the privilege of serving on the committee which writes and grades the examination for California attorneys seeking Certified Specialist status in Immigration Law. I can state, without hesitation, that the examination was extremely difficult to pass, and that every attorney who our committee recommended to be a Certified Specialist was both experienced and a true expert in the field.
In my opinion, persons seeking legal advice from immigration attorneys could do no better than to restrict their search to pre-screened Certified Specialists in Immigration Law.
LOCATION, LOCATION, LOCATION ?
This mantra is a good rule of thumb when you are looking to buy a house. It is less helpful when you are seeking immigration legal advice. Immigration law is federal. Therefore, an immigration lawyer in Texas or California can represent corporate and individual clients in all 50 states.
For example, during the past few weeks, attorneys in our law firm flew to New York City, Reno, Dallas and Philadelphia to represent clients. In a typical case, however, the petitions and applications are simply mailed to the USCIS, and no interview is required. The location of the attorney is irrelevant, while the skill of the attorney is paramount.
However, they seem to have reneged on their promise.
Don't despair. Below, we link to the web addresses of all Certified Specialists in Immigration Law around the United States.
HOW TO FIND A CERTIFIED SPECIALIST IN IMMIGRATION LAW
Four states currently certify attorneys as specialists in immigration law. If enough savvy consumers of legal services use certified specialists, we predict their will be a clamor in all states to certify legal specialists in the future.
WHAT CAN A CERTIFIED SPECIALIST DO FOR YOU?
Why should you hire a Certified Specialist in Immigration Law?
Take a look at the brochure written by the California State Bar at
If you are a savvy consumer, you will hire a Certified Specialist in Immigration Law to assist you in your immigration case.
This way, you can obtain top-notch legal advice and avoid the unfortunate dilemma faced by the businessman and his daughter discussed at the beginning of this article.
