ABA Journal


Legal Ethics

Top Calif court skeptical about undocumented law grad’s right to be licensed to practice

Sep 4, 2013, 10:55 pm CDT


Again, total PC, duck-speak crap with the "undocumented" idiocy. He has been pushing paperwork in pursuance of lawful status since 1994. He is thoroughly "documented." Has the little AP style book rendered the entire staff non compos mentis? It sure as Hell looks like it.

By B. McLeod on 2013 09 05, 5:30 am CDT

Even without the Federal law, that this question is even being litigated in all seriousness is beyond belief. Wait a minute: it originates in California, home of Kamala Harris and Jerry ("it's a DENIAL of equal protection to mandate color blind admissions" Brown). Unfortunately, its not unbelievable at all.

By Wine_Country_Dude on 2013 09 05, 5:38 am CDT

Wouldn't it be great if this journal actually updated us on how those other cases in NY and FL since it cites old links to those stories from a year and a half ago? Much has happened since then and this journal has newer stories on them than the ones linked. It's too much to ask, too, I know, to expect stories to reveal which legal issues are at stake.

Turns out both California and the Florida Bar are arguing that state supreme courts govern admission to the bar, not federal law. Good argument actually. What gives the federal government constitutional authority to regulate state bar associations? A comprehensive discussion of the issues can be found here:

On this one, I'm torn, even though I initially wanted to say that California is driven by political correctness again. But there are many factors in favor of allowing him to be licensed.

Children smuggled illegally or not returned by parents when visas expire are not culpable for their situation. It's not an issue of character or morality for one placed in this situation. None of us would be so morally upright to leave at 18.

Missing from this story too is that the applicant's father is a citizen, sponsored him to become a permanent resident in 1994 and they are still waiting.

Then there's the fact the military will take illegal aliens to war for this country and fly them back from Iraq into US soil knowing they are illegal aliens..

Then there's the fact an illegal alien does not break the law by working as a freelance contractor or opening their own business as long as they're not an employee. (The state department lawyer argues in the California case that its illegal for a client to pay him money--a proposition I don't believe is true as clients are not employers.)

Then there's the fact Immigration policy favors professionals because there are long term advantages for a receiving country to attract the most educated and brightest.

Then there's the fact that if he gets a professional license, he's less likely to become illegally employed because he can be self sufficient as he's apparently done by working at his own enterprises.

Then there's the fact that being present in the US without legal status is not a continuing crime. Under immigration law entry or overstaying is the offense--prosecution is based on whether it's a first offense or second offense, etc. So obviously its not a separate offense to be here each day. So the applicant is not violating the law everyday by being present here as argued by some.

Given these factors, it seems reasonable not to bar an illegal alien who entered the US as a child from practicing law for that reason alone.

By Santana on 2013 09 05, 9:08 am CDT

Well, let's take a few minutes to whine like a mule. Somebody obviously got up on te wrong side of the bed this morning.

By B. McLeod on 2013 09 05, 12:26 pm CDT

Don't you mean illegal alien? We have resident aliens. So why isn't he an illegal alien?

If an individual is residing in this country in contravention of its laws, he is committing a crime and therefore not qualified to be a member of the bar. If an individual with a prior OUI has to explain this event in detail and in writing to the Board of Bar Examiners and pray that his explanation is acceptable lest he not be admitted; why should someone who is actively flouting the law be granted admission?

But, then again, I am obviously a horrible person for even thinking this.

By ACD on 2013 09 05, 3:12 pm CDT

A person who is actively flouting the law should be granted admission for the same reason that a person actively flouting the law should be allowed to "war for this country."

Thank you Santana

By Cheryl on 2013 09 05, 3:41 pm CDT

@6 Illegal immigrants cannot enlist in the armed forces. Moreover, felonies and active criminal cases are impediments to enlistment. In light of these facts I am a little confused by your response.

By ACD on 2013 09 05, 3:48 pm CDT

@3: To quote Daniel Patrick Moynihan, "Everyone is entitled to his own opinion, but not his own facts."

A number of your "facts" are in fact, bogus. As #7 has pointed out, for example, illegal aliens cannot enlist in the US Armed Forces. The Pentagon did have a program in 2009 where skilled immigrants with VALID visas could enlist. The interest was mainly in people with specific language skills. That program was suspended in January 2010. There was talk in late 2012 of reactivating that program, but I don't know if it was reactivated.

By Tyrone on 2013 09 05, 4:14 pm CDT

@5 If you read the briefs, being present in the US as an illegal alien is "not a crime." It's an infraction of civil law. It's in black and white from the state's brief citing immigration law. We all hear the rhetoric that it's a crime to be here illegally but its not a "Crime." Smuggling people yes. Being present, no. The bar and the state make these points in both of the cases being considered by the supreme courts of their states. I defer to those who can cite the law rather than those who just through out there the rhetoric that it's a "Crime." There may be other reasons to oppose this, but that is not one cause it's not true.

By Santana on 2013 09 05, 5:14 pm CDT

He should have claimed that he is a transgender who identifies as a lawyer.

By Hedgehog on 2013 09 05, 6:58 pm CDT

No big tragedy if he loses. He'll make more money playing golf anyway.

By MrBill on 2013 09 05, 8:03 pm CDT

@3 Santana re "What gives the federal government constitutional authority to regulate state bar associations?"

Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) held lawyers engage in "trade or commerce" and hence ended the legal profession's exemption from antitrust laws.

The Commerce Clause -Article I, Section 8, Clause 3. [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

Sherman Antitrust Act, 15 U.S.C. §§ 1-7; Section 1: Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.....

Clayton Antitrust Act 15 U.S.C. § 12-27. The Clayton Antitrust Act of 1914, codified at 15 U.S.C. 12-27, outlaws the following conduct: price discrimination; conditioning sales on exclusive dealing; mergers and acquisitions when they may substantially reduce competition; serving on the board of directors for two competing companies.

Section 5, FTC Act 15 U.S.C § 45 - Unfair methods of competition unlawful; prevention by Commission. (a) Declaration of unlawfulness; power to prohibit unfair practices; inapplicability to foreign trade (1) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.

By petitioner on 2013 09 10, 3:38 pm CDT

@12 - I think the better answer is that the feds have the authority to impose immigration status restrictions on everyone, including state bar associations, under Congress' plenary power to regulate the naturalization of citizens.

The federal law at issue in this case has an opt-out for states. Mr. Garcia might be best served if he petitioned the California Bar to adopt a rule specifically providing that a license can be granted without regard to the applicant's immigration status.

By NoleLaw on 2013 09 10, 4:25 pm CDT

I am unemployed and on a sinking ship, as are many of my educated American friends here in California. Isn't it nice to know that our legislators and governor are spending their time, energy and our money to make sure that they hurry up and give poor Sergio the opportunity to have a job that Americans won't do. Finally, we have a lawyer in California.

I understand that Sergio opened up a personal injury law firm in Los Angeles just two weeks before the state yanked his bar license. Doggonit, personal injury lawyers are just so darn hard to come by in Los Angeles nowadays. It must be a practice area California lawyers just won't do.

In any event, kudos to all three branches of government here in Calfiornia for sending out the strong message that lawyers don't have to follow the law, but YOU do.

By Forseti on 2013 09 13, 9:41 pm CDT

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