November 18, 2017

Archives for November 1, 2017

The Colorado Lawyer Self-Assessment Program

Editor’s Note: This is a guest post by Jonathan White of the Colorado Office of Attorney Regulation Counsel. You can find out more about the lawyer self-assessment survey on the OARC website

By Jonathan P. White, Office of Attorney Regulation Counsel

Colorado has launched its new lawyer self-assessment program designed to help lawyers better serve clients and simplify their professional lives. This program arises out of a multi-year initiative of a subcommittee of the Colorado Supreme Court’s Attorney Regulation Advisory Committee. Over 50 practicing lawyers have participated in the subcommittee. They have drawn from their professional experience to identify practices that promote client service, that lead to more efficient office management, and that allow lawyers to assess their practice’s ethical infrastructure. The subcommittee’s goal is to help lawyers assess their practice and identify points of excellence and areas for improvement.

There are ten individual areas of self-assessment:

  1. Developing a competent practice;
  2. Communicating in an effective, timely, professional manner and maintaining relations;
  3. Ensuring that confidentiality requirements are met;
  4. Avoiding conflicts of interest;
  5. Maintaining appropriate file and records management systems;
  6. Managing the law firm/legal entity and staff appropriately;
  7. Charging appropriate fees and making appropriate disbursements;
  8. Ensuring that reliable trust account practices are in use;
  9. Working to improve the administration of justice and access to legal services; and
  10. Wellness and inclusivity.

Ultimately, these self-assessments should help attorneys avoid grievances and alleviate some of the stress associated with practice, especially for solo and small firm practitioners and those new to practice. The self-assessments are voluntary and confidential. The Office of Attorney Regulation Counsel does not receive any personally-attributable answers. The assessments offer links to the Colorado Rules of Professional Conduct and to a variety of educational resources ranging from template forms to advisory opinions to articles on current professionalism issues.

Lawyers can now view and complete the self-assessments through the Office of Attorney Regulation Counsel’s website: https://www.coloradosupremecourt.com/AboutUs/LawyerSelfAssessmentProgram.asp. Lawyers can choose to take all ten self-assessments through an online survey platform accessible at the top of the previously-referenced webpage. This online platform may be used on a desktop computer, laptop, or mobile device. As an alternative, lawyers may also download the print/PDF survey through the same webpage. After completing either the online self-assessment or the print/PDF version, lawyers may claim up to three general credit hours and three ethics credit hours of continuing legal education. A CLE affidavit is available on the self-assessment program webpage, as well as through the online survey itself.

Tenth Circuit: Attorney General’s Interpretation of the Immigration and Nationality Act’s Reinstatement Provision is Reasonable

The Tenth Circuit Court of Appeals issued its opinion in R-S-C v. Sessions on Wednesday, September 6, 2017.

This case presents a conflict between the provisions of the Immigration and Nationality Act (INA). The asylum section of the INA states that any alien, irrespective of such alien’s status, may apply for asylum. By contrast, the reinstatement provision mandates that a previously deported alien who illegally reenters the United States will have his prior removal order reinstated and is not eligible and may not apply for any relief. The Attorney General has determined that the latter subsection prevails and an illegal reentrant with a reinstated removal order is not eligible for asylum relief.

The Tenth Circuit Court of Appeals was asked to decide whether the Attorney General’s interpretation of the INA is a reasonable interpretation of the statutory scheme.

The background of this case involves R-S-C, a woman originally from Guatemala, who had come to the United States without inspection three times to escape threats and extortion against her in Guatemala. The Tenth Circuit found no merit in the argument that she did not illegally reenter the United States, as she expressly declined to contest the determination that she reentered the United States illegally, and there is no evidence in the record suggesting that she presented herself at the border in search of an immigration officer to file an asylum application, as she had previously claimed.

The Tenth Circuit evaluated whether the Attorney General’s interpretation was reasonable. The court determined this through a two-step framework. First, the Court examined whether Congress has directly spoken to the precise question at issue. The court concluded that the statutory command is ambiguous, as there is conflict between the asylum and reinstatement provisions. The Circuit found that Congress did not clearly resolve the question.

Second, because the statute is silent or ambiguous with respect to the specific issue, the question for the Circuit is whether the Attorney General’s answer is based on a permissible construction of the statute. If so, the court must accept the Attorney General’s construction of the statute. The Circuit rejected an argument that the Attorney General failed to perceive the ambiguity in the statute and felt compelled by Congress when interpreting the statute. The court found that the Attorney General’s silence on the statutory interplay does not mean the Attorney General missed the ambiguity. In rejecting this argument, the court considered whether the interpretation was reasonable, and determined it was, offering five reasons.

First, it is reasonable for the Attorney General to conclude that the reinstatement provision means what it says: that certain aliens are not eligible for “any relief.” It is also reasonable to conclude that the reference to “any relief” naturally means all forms of relief, including asylum.

Second, it is not unreasonable for the Attorney General to decide that the reinstatement provision is more specific than the asylum provision, as the Attorney General focused on the section of the INA that carves out a subset of persons for special treatment, rather than another section that establishes rules for a particular kind of relief that apply across the board.

Third, the Attorney General could reasonably conclude that the reinstatement provision operates with stronger force than the asylum section, as it speaks in mandatory terms, requiring the Attorney General to deny relief to aliens with reinstated removal orders.

Fourth, the asylum provision expressly authorizes the Attorney General to establish additional limitations and conditions, under which an alien shall be ineligible for asylum. By contrast, the Attorney General had no discretion to decide that some kinds of relief are immune from the eligibility bar after a removal order is reinstated. Thus, the Attorney General could have reasonably concluded that the reinstatement provision reflects a stronger congressional command than the asylum section.

Fifth, the Attorney General’s determination reasonably furthers the Illegal Immigration Reform and Immigrant Responsibility Act’s (IIRIRA) purpose in strengthening the reinstatement provision. Congress passed IIRIRA to replace a previous, more lenient, regime. IIRIRA foreclosed discretionary relief from the terms of the reinstated order. This suggests that Congress intended to fortify the effect of the reinstatement provision, and the Attorney General’s interpretation is faithful to that purpose.

In conclusion, the Circuit found that the INA does not clearly answer the question of whether an illegal reentrant with a reinstated removal order may apply for asylum. The Attorney General, however, has reasonably interpreted the ambiguous statutory scheme in concluding that such an alien is not eligible for asylum relief. The court, therefore, defers to the Attorney General’s interpretation.

The Tenth Circuit Court of Appeals DENIED the petition for review.

Tenth Circuit: Unpublished Opinions, 10/31/2017

On Tuesday, October 31, 2017, the Tenth Circuit Court of Appeals issued two published opinions and seven unpublished opinions.

United States v. Lemon

Harrold v. Berryhill

United States v. Westover

Alvarado v. Smith

United States v. Renteria

Weaver v. Bear

Cornforth v. Fidelity Investments

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.