It’s hard out there for an immigrant. President TrumpDonald TrumpRobert Gates says 'extreme polarization' is the greatest threat to US democracy Cassidy says he won't vote for Trump if he runs in 2024 Schiff says holding Bannon in criminal contempt 'a way of getting people's attention' MORE routinely demagogues the nation’s undocumented population. Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsTrump criticizes Justice for restoring McCabe's benefits McCabe wins back full FBI pension after being fired under Trump Overnight Hillicon Valley — Apple issues security update against spyware vulnerability MORE now leads an enforcement campaign centered around making life so unpleasant for undocumented immigrants that they decide to leave the country instead of facing the abuse.
In these times, immigrants need to be able to find help they can trust. Sadly, they also need to watch out when they call up a lawyer.
Our self-regulating legal profession does many things well, but we often struggle to police our own ranks. We each learned this lesson while representing immigrants on a pro bono basis while in private practice.
Like many lawyers, we gave our immigrant clients the same level of dedication and diligence as our paying work. Sadly, when we walked into immigration court, we often saw seemingly unprepared and unimpressive lawyering.
As law professors, we have seen similar problems with some immigration lawyers. We stay in touch with our driven, idealistic graduates. Some of them land at immigration firms. One individual worried about how to extricate himself from an unethical firm.
The managing partner would file baseless asylum claims and then task his young associate with defending them in immigration court. It forced a hard choice on a young lawyer: his ethics or his income.
Most immigration lawyers zealously represent their clients and help them achieve better outcomes than they would without representation. Research convincingly shows that representation usually improves an immigrant’s chances in our Byzantine immigration system.
One study found that represented immigrants are five times more likely to apply for relief and five times more likely to get it. But there simply are not enough good immigration lawyers to go around. So, some immigrants get lemons: lawyers who can actually make their chances worse.
While the research on immigration lawyers shows how much most of them help their clients, it also confirms the real problems within the immigration law bar that we’ve seen with our own eyes.
Researchers studying asylum cases found that the bottom 10 percent of immigration lawyers actually reduced the chance of relief so much that the applicant would have been better off without a lawyer.
Notably, the study controlled for the wildly unpredictable outcomes in asylum cases — some judges grant 95 percent of applications, and others deny 95 percent — a different problem that also must be addressed.
Immigrants face a dilemma: How do they avoid the lemons? They have no way of knowing whether they have hired one of the many good lawyers, or one of the lousy few. One group of researchers explained that “immigrants are simply in a terrible position to evaluate the claims made by lawyers and are often naïve about what lawyers can and cannot do for them.”
George Akerlof won a Nobel prize for showing how “asymmetric information” causes market failures. When sellers know more than buyers, buyers don’t know who to trust, and everyone suffers. Just like a few dishonest used car dealers make everyone mistrust used cars, a few bad immigration lawyers make people mistrust all of them.
Although measuring lawyer quality is difficult task, the immigration law bar has a serious quality control problem. One survey of judges by Richard Posner and Albert Yoon found that of all practice areas surveyed, “immigration was the area in which the quality of representation was lowest.”
Another survey of New York immigration court judges found that about half of the lawyers they saw provided either inadequate or grossly inadequate representation, and the worst lawyers actually make their clients worse off.
There are two ways to address this problem. Lawyers can and should police their own ranks by reporting unfit lawyers. But no one likes a tattletale. When one of us published concerns about this problem in the Wall Street Journal, the American Immigration Lawyers Association called it “fake news.”
Just like the “blue wall of silence” encourages good police officers to defend bad ones, good lawyers are reluctant to criticize bad ones.
We think reducing information asymmetry might also help. Immigrants deserve to know how often lawyers succeed. Immigration courts collect information about every case filed by every immigration lawyer. A public database providing that information to immigrants would help them find good lawyers and avoid bad ones. This would give immigrants a tool to distinguish between the reprobates and the righteous.
Of course, this isn’t a perfect solution. Statistics cannot tell the entire story. We trust immigrants to use the information intelligently. A lawyer winning only 20 percent of cases before a judge who denies 95 percent of all claims deserves a medal.
A lawyer winning 60 percent of petitions when most win 90 percent should be avoided. Great lawyers taking tough cases may show middling statistics. Despite this, immigrants should have information that might help them steer away from lousy lemon lawyers.
Whether we pursue this solution to the lemon problem or another, we must do more to deal with the bad apples in our midst. Far too often, professional self-regulatory organizations behave like cartels.
Although we see the problem as most pronounced in the immigration law bar, similar problems exist with criminal defense and other practice areas. We should make more information available to let immigrants themselves improve quality by making informed decisions about who to hire.
Benjamin Edwards is an associate professor of law at the William S. Boyd School of Law at the University of Las Vegas, Nevada. Brian L. Frye is an associate professor of law at the University of Kentucky College of Law.