New York Immigration Lawyer Wins Battle To Practice In Texas

The Texas Bar's Unauthorized Practice of Law Committee has dropped a lawsuit that sought to prohibit New York-licensed immigration lawyer Dakshini Senanayake from practice in her new home of Houston. Ms. Senanayake was accused in the suite of engaging in the unauthorized practice of law in Texas because she lacks a Texas license.

Ms. Senanayake fought back by filing a counter-suit in federal district court arguing that as long as she limits her practice to immigration law and does not practice in Texas state courts, she has the right to practice in Texas or any other state. She pointed to existing federal regulations and Supreme Court cases.

The Texas UPLC and Ms. Senanayake recently dropped their suits. The Texas UPLC commission is said to have been influenced by the fact that no clients of Ms. Senanayake complained about her work.

The question of lawyers engaging in multijurisdictional practices (MJPs) is one that is being vigorously debated nationally. The American Bar Association last year issued a report arguing for states to reform their rules and make it easier for lawyers to cross state lines. Some argue that preventing lawyers with licenses in other states from practicing is needed to protect consumers. Opponents counter that the rules are designed to protect lawyers from competition and, in reality, there have been few problems with lawyers who have worked in other states. Furthermore, proponents of MJPs argue that consumers should have a choice and limiting their choices in the name of consumer protection is really paternalistic and does not actually result in better results for clients.

Immigration lawyers have had national practices for decades. Defenders of such practices point out that immigration lawyers are governed by the grievance systems in the states where they are licensed - every immigration lawyer must be licensed in at least one state - as well as separate rules on professional conduct issued by the Board of Immigration Appeals. The BIA rules cover the conduct of all immigration lawyers regardless of whether the lawyer is engaged in litigation before the BIA.

Immigration lawyers also have powerful legal arguments to make in favor of national practices. The US Constitution specifically bars the states from regulating immigration. That means that Congress creates the law in this field and immigration law is largely uniform around the country. So the traditional arguments made regarding protecting consumers from lawyers not familiar with the rules of a particular state are not particularly persuasive. Also, the Agency Protection Act in the US Code specifically states that only a federal agency has the right to determine who can practice in front of a particular agency. That's why, for example, the Bureau of Citizenship and Immigration Services, allows certain non-lawyers working for accredited non-profit organizations to practice in front of the agency. State unauthorized practice of law statutes would not permit these non-lawyers from handling immigration cases, but federal law trumps here.

Finally, the US Supreme Court ruled 40 years ago in the case Sperry v. State Bar of Florida that a state could not prohibit a person engaged in a strictly federal practice area from practicing in that state if the federal agency in front of which the person practices approves of that person. In the Sperry case, an individual passed the patent bar and received approval to practice in front of the US Patent and Trademark Office. The State Bar of Florida sought to prohibit Sperry from practicing in Florida because Sperry, not a law school graduate, lacked a Florida license. Sperry won the case because the Supreme Court found that Florida had no right to interfere with the USPTO in determining who could practice in front of the agency.