Video: Kanban project management for lawyers

Video: Kanban project management for lawyers

Busyness is the plague of Lawyerdom. Yet while lawyers claim busyness as a merit badge, our clients don't care if we're busy - only if we're productive. Fortunately there is an entire professional discipline devoted to the art and science of productivity, and that's the field of project management. This presentation offers suggestions about how lawyers can improve their effectiveness - and reduce the mental clutter of busyness - by borrowing Agile project management systems from the technology sector.

Video: Agile project management for any lawyer

Video: Agile project management for any lawyer

Busyness is the plague of Lawyerdom. Yet while lawyers claim busyness as a merit badge, our clients don't care if we're busy - only if we're productive. Fortunately there is an entire professional discipline devoted to the art and science of productivity, and that's the field of project management. This presentation offers suggestions about how lawyers can improve their effectiveness - and reduce the mental clutter of busyness - by borrowing Agile project management systems from the technology sector.

How lawyers can use Agile project management and kanban

How lawyers can use Agile project management and kanban

One of my core beliefs in managing our law firm is that we should borrow ideas from businesses outside the legal field. Attorneys are notoriously slow to adopt new ideas. While the rest of the world rushes by with creative new ways of getting things done, law firms are too often left behind. This post outlineshow lawyers can use Agile project management to improve their effectiveness.

Law school talk: Legal Zoom and Legal Hacking

This month I had the opportunity to return to the University of Nebraska College of Law to talk about the future of the legal profession (as I see it). Professor Eric Berger is a good friend from the days when I served as his research assistant for his work on constitutional law issues. When he was out in Seattle last summer we had a long that about these topics on a hike and so I wound up coming out to talk to students and faculty. For those immersed in "legal future" issues there's probably not much new here. Primarily I wanted to help students think about the quickly changing legal services marketplace. Students need to get out of the head space of thinking about getting "jobs," and focus more on new models for delivering valuable results to clients.  What's the difference? It's a difference of mind set. New lawyers should not assume that a cookie-cutter career will be handed to them on a silver platter. They should assume that they will have to deploy creativity and critical thinking to really examine how they can contribute to an organization and ultimately - most importantly - to the clients they serve.

Video is courtesy of the nice folks at the law college.

Photo credit: Pakorn

Video: Social Media for Lawyers

Jointly hosted by Evolve Law Now and the Seattle Legal Technology and Innovation Meetup Group. This event explored the use and effectiveness of social media use by lawyers in marketing. Expert Panel: Social Media for Lawyers

  • Mary Juetten, CEO, Traklight (Moderator).
  • Jennifer Castleberry, Director of Marketing & Business Development, Davis Wright Tremaine LLP.
  • Adrian Dayton, Founder,  ClearView Social, Inc.
  • Leigh McMillan, VP of Marketing, Avvo.
  • Allen Rodriguez, Founder, ONE400.

Also featured (at the end of part 3) is a Darwin talk, “Tech’s Peculiar Relationship with Legal Access,” by Miguel H. Willis who was the lead organizer of the Seattle Social Justice Hackathon.

Using Online Forms Is Easy and (Can Be) Ethical

blawgworld-450

The material in this post comes from a presentation I gave for the Washington State Bar Association's Solo and Small Practice Section's annual CLE on January 22, 2016. This article won the BlawgWorld Pick of the Week award. The editors of BlawgWorld, a free weekly email newsletter for lawyers and law firm administrators, give this award to one article every week that they feel is a must-read for this audience.

Let’s stop doing data entry whenever possible. That’s the basic idea. If anyone at your firm is routinely inputting lots of information, you might want to explore whether you could automate that system. How? Fundamentally, it’s by having the person who originally has the information — often your client — input it into your system without human intervention.

Here are just some examples of how you might use a form tool in your practice. If you’re one of the many attorneys who feel their clients “don’t use computers,” start looking at your clients’ phones. The tools discussed here will work nicely on web-enabled mobile devices.

  • Contact forms/prospective clients. Most of us probably have contact forms on our websites for prospective client contacts. Form tools can channel prospect information into whatever contact database or Customer Relationship Management (CRM) tool a firm is using.
  • Intake. Do your clients sit in the lobby and fill out a paper questionnaire à la the doctor’s office? Worse yet, does staff use time completing a questionnaire while the client talks? What if the questionnaire could be completed by the client before she walks in, and the data just a click away?
  • Routine case information. I’m an immigration lawyer and need the same information for most clients in a given legal scenario. Becoming a citizen? There’s a standard 15-pages worth of information I’ll need for such a case. Most practice areas have certain information that repeats per case type.
  • Customer satisfaction surveys. What do our clients actually think about us? We could always ask them. The easiest way is the net promoter score — a one-question survey that assesses whether a client would recommend our services. Note that unlike other tasks described here, this one does not necessarily capture data protected by client confidence rules, so your choice of (free) tools may be broader.

What do the RPCs have to say? An attorney has an ethical responsibility to competently use technology that she chooses to deploy in practice. Why? It follows from our many fiduciary duties to a client. For present purposes that mostly means safeguarding client information: your duty to secure client information naturally extends to the choice of tech used to store that information. Advisory Opinion 2215 gives us seven factors to consider in a due diligence analysis of such tools. To cut to the bottom line: if you collect and store client data online, it almost certainly needs to be encrypted where saved.

As is always the case with technology, before starting to shop, first decide what problem you are trying to solve. Consider:

  • How are you going to be using this data? Is this background information about a client that you just want to be able to reference later if needed for context? Is this data that you want to be able to import into some form of document automation tool? (Remember: Word can be a document automation tool.)
  • What type of data is being collected? Will you be capturing sensitive financial data and social security numbers? Or do you need to store only a 1–10 rating score of an interaction they had with your office staff?
  • What are the dividends you stand to gain? Are you collecting data for a use that’s core to your practice, used in daily client work? Or is this a small amount of information used for an isolated purpose? Some tools are cheaper and easier to implement than others.

With those considerations in mind, here are some of the forms tools that I’ve played with personally; while there are many more out there, these are some of the most popular.

Google Forms (free) Google offers an excellent, free forms tool that integrates seamlessly with Google Drive (also free). I use this tool often for various non-client scenarios. In the screenshot below, for example, I was creating a form to collect information about colleagues who were interested in collaborating with my web-based immigration firm.

SoundImmigration screenshot
SoundImmigration screenshot

Google recently revamped Forms and its drag-and-drop interface is now even better than it had been. The catch? Forms does not presently support encryption, though there are third-party solutions to encrypt Google Drive. A second limitation of Forms is that it does not support “save/continue” functionality, which you would want for any form of much length.

JotForm (free for up to 100 submissions) JotForm is an intuitive form builder that can be great for many law firm uses. The user interface of the forms-builder is intuitive, if not beautiful. (See screenshot below). JotForm supports encryption and also has a save/continue feature. The encryption tool is potentially clunky, depending on how you plan to manipulate the data once a form is submitted.

JotForm screenshot
JotForm screenshot

WuFoo ($29.95/month for “bona fide” plan) WuFoo is another popular drag-and-drop form builder that works similarly to JotForm. Personally, I feel its interface is easier to use, and it’s easier to customize a great-looking end product. Like JotForm, WuFoo offers encryption. The rub: you have to buy a premium plan to get it. If you’re achieving any efficiency with the form, however, the price point is a drop in the bucket.

Intake 123 ($9–79/month) This tool was specially designed for lawyers with ethics-related security issues in mind. It’s designed around lawyer “use cases,” meaning its templates and interface help you build forms for common law scenarios like client intake. In using it, I didn’t enjoy its user experience. Their customer service was responsive, however, and the fact that they designed their tool for lawyers means that you might get (for example) an intake questionnaire setup more quickly than with other tools, since Intake 123 will suggest popular questions to include.

Gravity Forms ($39 one-time license) This tool is a plugin for your WordPress site; if you don’t know what that means, this probably isn’t the right tool. Gravity Forms allows for encryption and save/continue functionality. A major appeal is that you pay for the one-time license and are set to go. Easy to use, this tool can build a form that’s nicely integrated into your WordPress site (though the tools mentioned above can be embedded by a script). The fact that it’s hosted on your site’s host, though, means that if you bungle something, your data will be lost. This may or may not have happened to the author at the time he was experimenting with Gravity Forms for a client intake tool (though if it did happen, no actual client data was lost or compromised).

Ye Olde PDF (free) The cheapest technology is always the technology you already have. If you’re running a paperless practice, you probably have Adobe Acrobat Professional. Along with Word, you can easily create a great-looking form with fillable data fields. This can be safely circulated to your client on a secure client portal like the WSBA-endorsed Clio. Once returned, you can export the data to .txt or .csv format, then import it into almost any context needed. After experimenting with all the above tools, I ultimately decided this approach was the best for the lengthy immigration questionnaires I send to clients. It’s easy for them to save their work and return to it as needed, then share the form with my firm on Clio once they’re done. And I don’t have to pay for any additional monthly user licenses.

If readers love other tools not mentioned here, please chime in.

This material will be presented at “7 Keys to Managing a 21st Century Practice,” the Solo and Small Practice Section’s annual CLE, on Friday, Jan. 22, 2016, in Seattle. Learn more about the event.

This post first appeared on the Washington State Bar Association's SideBar blog

How can the I-864 be legally enforced?

All marriage-based immigration visas require a promise by the U.S. citizen petitioner to financially support the foreign spouse. The Form I-864 Affidavit of Support is a binding contract between the petitioner and the U.S. government. Financial support under the I-864 contract lasts indefinitely and survives dissolution of marriage. The foreign national spouse may sue to enforce the right to support in state or federal court and is entitled to costs and attorney’s fees. This piece was originally published as: Greg McLawsen, The I-864 Affidavit of Support: An Intro to the Immigration Form You Must Learn to Love/Hate, Vo 48. No. 4 ABA Fam. L. Quarterly (Winter 2015).

Have a question about whether you or a client has a potential case under the I-864? Contact our firm, Immigration Support Advocates here.

 

A young woman, Saanvi, walks into your office. She is a PhD software engineer from India in the process of leaving her husband of four months, who helped her immigrate to the United States. Things simply haven’t worked out. He earns substantially less than she did at the job she just left. She plans on looking for employment, but wants to know if she can get court-ordered support in the meanwhile, and also for down the road in case she is ever unemployed. How do you advise her?

By facilitating her immigration to the United States, Saanvi’s husband entered into an enforceable contract to provide her with financial support. The level of support, while somewhat modest, must be provided for an indefinite period, potentially for the duration of Saanvi’s life. She has the option of enforcing her right in state or federal court, and may get her attorney fees and costs for doing so. It is irrelevant that the marriage was short-lived, and that she has superior earning capacity. It may not even matter whether she could get another job if she chooses.

The immigration form underpinning this paradigm is the I-864, Affidavit of Support. Surprisingly, the form and its robust financial implications have received relatively scant attention within the domestic law bar.[1] An appreciation of the Affidavit of Support will motivate family law attorneys to diligently screen their clients for immigration scenarios. This article provides a brief introduction to the immigration law context wherein the form is used and describes the scope of the financial obligations it imposes (Section 1), then describes the legal tools available to a foreign national to enforce her rights (Section 2) and the legal defenses available to the U.S. sponsor (Section 3).[2]

Immigration law background

U.S. immigration law is a petition-based system. For someone wishing to move permanently to the country there is no general “line” to get in. Nor is there such a thing as a garden-variety “work permit” for which to apply. Rather, the path to permanent residency generally begins with a U.S. business or individual petitioning for the foreign national[3] – think of this as a type of invitation from the U.S. entity or individual to the foreign national. The issues discussed in this paper arise in family-based petitions, where one relative – generally a spouse – petitions for a foreign national relative.

Any foreign national wishing to enter the U.S. is screen through a laundry list of statutory grounds of inadmissibility. These range from crime-related grounds to health-related grounds.[4] A long-standing ground of inadmissibility has barred an individual likely to become a “public charge.”[5] This determination is made either by a consular officer at the time of a visa interview, or at the time the individual applies within the U.S. to become a permanent resident (i.e., receive a green card).[6] A variety of factors are considered in the public charge determination.[7] Since 1996, however, immigration petitioners have been required to promise financial support to certain classes of foreign nationals.[8] The tool by which this is accomplished is the subject of this article.

The I-864, Affidavit of Support[9] is an immigration form submitted by the U.S. immigration petitioner, guaranteeing to provide financial support to a foreign national beneficiary. The petitioner promises to maintain the intending immigrant at 125% of the Federal Poverty Guidelines (“Poverty Guidelines”) and to reimburse government agencies for any means-tested benefits paid to the noncitizen beneficiary.[10] The required support amounts to $14,588 annually ($1,216 per month) for a single-person household, plus $5,075 annually ($423 per month) for each additional household member.[11] The I-864 provides that the sponsor will be held personally liable if he fails to maintain support, and may be sued by either the beneficiary or by a government agency that provided means-tested public benefits.[12]

The I-864 is required in all cases where a U.S. citizen or permanent resident has filed an immigration petition for a foreign family member including for a spouse.[13] Any spousal petition adjudicated since 1996 will have required an I-864 prior to approval. The limited exceptions to this broad rule are beyond the scope of this article and are rare in application. Those applying for a fiancée visa are not required to produce a Form I-864 at the time they are processed by the consular post.[14] Once the foreign national fiancée enters the U.S., however, she must marry within 90 days and thereafter apply to “adjust status” to U.S. permanent resident. During this process she is then required to provide a Form I-864 from her sponsor.[15]

The Form I-864 is also required in a handful of employment-related contexts, wherein a U.S. employer has petitioned for the foreign national.[16] I-864 beneficiaries of employment-based petitions will not be readily identifiable by practitioners unfamiliar with immigration law. But the vast majority of I-864 scenarios arise in family-based petition processes. Any time an individual has achieved immigration status in the U.S. based on a family relationship a practitioner should presume the immigrant is the beneficiary of a Form I-864.

Practitioners should carefully distinguish between the Form I-864 and the Form I-134 Affidavit of Support.[17] The Form I-134 pre-dates the Form I-864 and was used in family-based cases prior to 1996; it is still used in fiancée visa cases. Unlike the Form I-864, courts have determined that the Form I-134 is not enforceable against an immigration sponsor.[18]

The sponsor’s support duty is of indefinite duration. The responsibility lasts until the first occurrence of one of these five events: the beneficiary (1) becomes a U.S. citizen; (2) can be credited with 40 quarters of work; (3) is no longer a permanent resident and has departed the U.S.; (4) after being ordered removed seeks permanent residency based on a different I-864; or (5) dies.[19] It is settled that a couple’s separation or divorce does not terminate the sponsor’s duty.[20] Under U.S. immigration law a foreign national is under no obligation to become a citizen – a process called naturalization. Hence, the I-864 beneficiary could remain in the U.S. as a permanent resident for the duration of her life. At least one court has examined the accrual of work quarters for purposes of ending I-864 obligations, and concluded that quarters may be ‘double stacked,’ so as to credit the beneficiary with her own work quarters as well as those of her sponsor husband.[21] On this approach support duties could terminate in five rather than ten years if both members of a couple are working.

In addition to the primary sponsor (i.e., the immigration petitioner) one or more additional individuals may have joint and several liability as to the I-864 support obligation. First, where the sponsor is unable to demonstrate adequate financial wherewithal, one or more additional “joint-sponsors” may be used to meet the required level.[22] Such joint sponsors may be any adult U.S. citizen or lawful permanent resident currently residing in the United States.[23] Joint sponsors typically are – but are not required to be – family or close friends of the primary sponsor. A joint sponsor executes a separate Form I-864, indicating herself as a joint rather than primary sponsor. Once submitted, the joint sponsor’s liability is joint and several with the primary sponsor.[24]

Second, the primary sponsor may use income of qualifying household members to meet the requisite support level. In order to use such income the household member must execute a Form I-864A.[25] The household member becomes jointly and severally liable – and this paradigm has been found enforceable.[26]

Finally, it should be noted that in some scenarios it may be no small matter for counsel to lay hands on the I-864 executed by a would-be defendant. Depending on the procedural posture of the immigration case, the signed I-864 will have been filed with U.S. Citizenship and Immigration Services or the Department of State. The beneficiary may request a copy of the executed form her immigration via a Freedom of Information Act (FOIA) request.[27] Yet because certain immigration records are protected by the Federal Privacy Act, portions of the I-864 – such as the sponsor’s name and signature – may be redacted. At least one colleague reports having had had his request completely denied outright.[28] An alternative method of establishing the requisite factual record could be to call an immigration attorney as an expert at trial. The attorney could be qualified to testify to the proposition that the immigrant visa or permanent residency card could not have been issued unless the sponsor had executed an I-864.

If the sponsor and beneficiary were represented by an attorney in the immigration petition, it may be possible for the beneficiary to request a copy of the signed I-864 from that attorney. Considerable attention has been given within the immigration lawyer community to the conflicts of interest that may arise when an attorney represents both a sponsor and beneficiary.[29] It has long been common practice for a single attorney to represent the sponsor, drafting the I-864 for his signature, as well as the beneficiary. Some immigration attorneys take the conservative approach of asking the sponsor to either draft the I-864 form himself or else retain separate counsel, but the prevailing approach appears to be for the principal attorney to draft the form. In this event the I-864 is properly viewed as part of the beneficiary’s client file, and in most jurisdictions the beneficiary client will have a proprietary right to obtain a copy of the form.

The mighty I-864 sword

Upon learning of the I-864, family law practitioners often respond with something akin to the five stages of grief and loss. First, practitioners respond with denial, refusing to believe our government would impose such a far-reaching support obligation on a U.S. citizen sponsor. Anger and indignation are then directed at the lawmakers who would impose such rules. Next comes a round of bargaining, where the lawyer looks for the escape valves that must exist somewhere. Since – as described below with respect to contract defenses – such escapes valves are few and far between, the reality of the legal landscape then sets in and settlement is discussed in earnest. This section describes the contours of the I-864 sword.

An example will help underscore that we are talking about a different sort of legal creature: the I-864 beneficiary has no duty to mitigate damages by seeking employment. The leading opinion on this proposition was handed down by Judge Richard Posner in the Seventh Circuit.[30] The court found that the Form I-864 itself, as well as the federal statute and regulations, were silent as to whether the beneficiary has a duty to seek employment.[31] Instead, the decisive factor was the clear statutory purpose behind the I-864: to prevent the noncitizen from becoming a public charge.[32] While the court’s holding relied in part on federal common law,[33] state courts have likewise held that the I-864 beneficiary has no duty to mitigate damages by seeking employment.[34]

Let’s explore what enforcement looks like at the ground level. There is no longer any question that I-864 beneficiaries have the legal ability to enforce their rights to support under the I-864 – they can and they do.[35] They have standing to do so as third party beneficiaries to the I-864 contract.[36] The only remaining quibbles are over the appropriate vehicles and forums to enforce those rights. It is most certainly false to shrug off the I-864 as a ‘federal law issue’ since enforcement may be had in “any appropriate court.”[37] To summarize the options available: (1) the I-864 support obligations generally will not be enforced via a spousal maintenance order; (2) without known exception I-864 rights may be enforced via a contract claim in state courts; and (3) I-864 rights generally may be enforced in federal court, even absent diversity of parties (except in the Middle District of Florida).

The sponsor’s support obligation commences at the moment the beneficiary becomes a permanent resident.[38] For a couple who has gone through the visa process at a U.S. consulate aboard, residency status commences when the foreign national enters the U.S. If the foreign national spouse was already present in the U.S. when they began the marriage-based immigration process, residency will commence after the couple completes the ‘adjustment of status’ process. In either event the residency period can be assessed by examining the beneficiary’s I-551 residency card (i.e., “green card”), which serves as documentary evidence of the individual’s residency status.[39]

The fact that the beneficiary has achieved residency status is the sole event required to trigger the I-864 support duty. It is not required, for example, that the beneficiary first receive means-tested public benefits.[40] The sponsor’s obligation to repay public benefits is wholly separate from his income support responsibility.

Before recovery is possible, the beneficiary’s household income must fall beneath 125% of the Poverty Guidelines, without which event there is no breach on the part of the sponsor.[41] If a beneficiary has an independent source of “income,” the sponsor need pay only the difference required to bring the beneficiary to 125% of the Poverty Guidelines.[42] But what counts as income for this purpose? Courts have generally ignored (or overlooked?) the fact that the I-864 regulations define income by reference to federal income tax guidelines.[43]

Recall that the level of required support is tied to household size. The I-864 regulations expressly describe the individuals included in calculating household size, which includes the sponsor himself.[44] Does this mean the sponsor must pay the beneficiary support for a household of two, even if the beneficiary is living alone? The only court to carefully consider the issue has recognized that it must, “strike a balance between ensuring that the immigrant’s income is sufficient to prevent her from becoming a public charge while preventing unjust enrichment to the immigrant.”[45] Where the beneficiary is living with a third party, such as another family members, courts properly make a fact-based determination of the support (if any) being received by the beneficiary, rather than automatically imputing income.[46]

Every known case in which an I-864 beneficiary has recovered from a sponsor in state court has arisen in family law proceedings. Yet confusion has persisted over how the I-864 comes into play. Beneficiaries have pursued support both as a standalone contract cause of action, joined to a dissolution proceeding, and also as a basis for awarding spousal maintenance. As family law practitioners are well aware, when it comes to enforcement this is a distinction with a difference for the beneficiary.[47] While some courts have allowed I-864 obligations to be bootstrapped into spousal maintenance this appears to be the minority approach.

In Love v. Love a Pennsylvania trial court was reversed for refusing to “apply” the I-864 when setting a spousal support obligation.[48] The appeals court held that the I-864 merited deviation from the standard support schedule, though it did not specify which statutory factor merited the deviation.[49] An energetic dissent in Love argued that incorporating a contractual agreement into a support order violates constitutional prohibitions on imprisonment for debts, since jail is an enforcement mechanism available for support orders.[50] By contrast, in Matter of Khan an intermediate Washington State appeals court held that a trial court did not abuse its discretion by limiting the duration of maintenance based on the I-864.[51] Among other rationales for its holding, the Khan Court was unable to locate a statutory hook that made I-864 obligations relevant to a spousal maintenance determination (which in Washington is governed by statute).[52] It may be largely a matter of a jurisdiction’s spousal maintenance statute and case law as to whether the I-864 will serve as a basis for ordering maintenance.

When I-864 beneficiaries pursue support outside the context of dissolution proceedings it is typically via a federal district court action. While a family law practitioner may never have direct involvement in such a case, some background is important, as dissolution proceedings may substantially impact a client’s financial rights in a federal action.

The vast majority of federal courts have easily concluded they possess federal question subject matter jurisdiction over a suit by an I-864 beneficiary against a sponsor.[53] The only current exception appears to be the Middle District of Florida.[54] Likewise, federal courts typically conclude that I-864 sponsor-defendants have submitted to personal jurisdiction.[55] The Federal District Court for Utah departed from this view, however, holding that it lacked personal jurisdiction over a sponsor-defendant where the sponsor lacked minimum contacts with the forum state.[56] This holding is baffling, since in the I-864 contract itself the sponsor expressly submits to personal jurisdiction in any state or federal court.[57]

If I-864 claims are litigated mostly in federal court,[58] why should this be of concern to family law practitioners? Because failure to assert an I-864 claim in a dissolution could preclude a subsequent claim in federal court. Certainly there is a strong argument that issue preclusion will bar a subsequent claim where the I-864 was in fact adjudicated in a dissolution action. [59] In Nguyen v. Dean, a federal court dismissed a case on summary judgment where the plaintiff-beneficiary had previously argued to the family law court that spousal support should be ordered based on the Affidavit of Support obligation.[60]

The more serious concern for family law practitioners is whether claim preclusion would bar a subsequent lawsuit where the beneficiary should have raised I-864 enforcement in the family law court. At least one court has suggested that a subsequent I-864 claim would be barred when the beneficiary should have discovered the claim at the time of a dissolution action.[61] Another has found that a subsequent claim was barred where the beneficiary presented argument concerning the I-864 in a dissolution action, but the issue was later dropped.[62] Other courts have been fairly liberal in allowing I-864 plaintiffs to avoid claim preclusion in subsequent actions.[63]

Without attempting to resolve the claim preclusion issue, may it suffice to say that family law practitioners should be vigilant to screen for clients who may be I-864 beneficiaries. Failing to spot that issue could have seriously detrimental effect on the client’s financial rights.

Abstention doctrines may also bar federal litigation of I-864 claims when there is related state court activity, but such matters are beyond the scope of this article.[64]

The I-864 warns the sponsor: “If you are sued, and the court enters a judgment against you… [y]ou may also be required to pay the costs of collection, including attorney fees.”[65] Indeed, courts have proved willing to award fees, subject to typical limitations of reasonableness.[66] Following the language of the I-864, the plaintiff-beneficiary is entitled to fees only if she prevails and a judgment is entered.[67] The beneficiary’s attorney must be vigilant to segment fees in such a way it is clear which efforts went towards I-864 enforcement rather than collateral claims.[68] Especially where an I-864 issue arises in a divorce proceeding, practitioners are well-advised to carefully document fees specifically related to I-864 enforcement.

As a final kicker: both courts to consider the matter have held that I-864 obligations are non-dischargeable in bankruptcy, on the view they are tantamount to domestic support obligations.[69] Hence a judgment on an I-864 matter may follow the sponsor-defendant to the grave.

Defenses

Whether raised as an argument for spousal maintenance, or cause of action in its own right, the I-864 sponsor’s obligation is fundamentally contractual in nature. Defendants have tested a wide array of traditional contract law defenses. In short, categorical defenses – directly challenging the I-864 as unenforceable – have been roundly rejected. Fact-specific defenses, chiefly fraud in the inducement, may be tenable, but require rigorous proof and have typically failed.

The government gets a boatload of value from the I-864 contract: the sponsor’s promise to financially safeguard an immigrant and indemnify the government for the cost of public benefits. And in return the I-864 sponsor gets… what exactly? More than one sponsor has argued that the answer is “nothing,” and that the agreement is void for lack of consideration.

While not a throw-away argument, it has not been a winner to date.[70] In short the ‘return value’ for the sponsor’s promise is the government’s agreement to allow the beneficiary to avoid categorical public charge inadmissibility. Recall that but-for the duly executed I-864 the beneficiary would be per se inadmissible to the U.S. The Form I-864 recites that, “The intending immigrant’s becoming a permanent resident is the ‘consideration’ for the contract.”[71] In other words, “your beneficiary isn’t going to become a permanent resident unless you sign this agreement.”

Sponsors have attempted to avoid I-864 liability by arguing they were fraudulently induced to sign Affidavits of Support. To date, all such known defenses have died at summary judgment. No known sponsor has yet succeeded on a fraud defense, either in motion practice or at trial. But it is clear that – on the right set of facts – a Sponsor could theoretically avoid liability by meeting the steep burden of proving up a fraud defense.

Anyone familiar with Sandra Bullock’s oeuvre will be familiar with the scrutiny that faces couples going through the immigration process.[72] A sponsor can argue that he got duped into marrying the beneficiary, but that will be terribly hard to prove on summary judgment.[73] In rather far-fetched dicta, one federal court has suggested that a sponsor waives the contact defense of fraud if he fails to argue “allegations of fraud” in the prior dissolution action.[74]

An I-864 sponsor’s financial obligations are substantial and last indefinitely, even where the relationship underlying the obligation was short-lived. In such circumstances, financial support duties under the I-864 may far outstrip the amount of alimony to which the immigrant-beneficiary would be entitled. Moreover, I-864 sponsors may lack full appreciation for the solemnity of their obligations at the time they execute a stack of immigration forms for their beneficiary family member. Accordingly, sponsors have argued to courts that the obligations imposed by the I-864 are so harsh as to render the agreement unconscionable.[75] To date, these arguments have failed.[76] One court opined that it was reasonable that the sponsor would want to support his wife in the immigration process, as well as financially (he was doing so already).[77] Another noted the cautionary recitals in the I-864 form.[78]

A major unresolved issue is whether a noncitizen-beneficiary and sponsor may enter into a nuptial agreement that limits or eliminates the sponsor’s duties to the noncitizen-beneficiary under the I-864.[79] The majority of courts to consider waivers of I-864 rights have found such agreements to be unenforceable, though the reasons for this holding are misguided.

To the extent straw-counting qualifies as legal analysis, the court count is three to one in favor of the proposition that I-864 obligations cannot be waived.[80] The rationale supporting this view includes: that I-864 rights are “imposed by federal law” an inherently non-waiveable;[81] that a prenuptial agreement is modified by subsequent execution of an I-864;[82] and that “a prenuptial agreement or other waiver by the sponsored immigrant” is not one of the five events that end I-864 obligations under federal regulations.[83] One court deployed the following syllogism: under federal law the government may accept only an enforceable I-864 when the beneficiary immigrates; the government did accept this I-864; therefore regardless of the nuptial agreement this I-864 must be enforceable.[84]

Most confounding is the fact that these views run contrary to those of the Department of Homeland Security (DHS), the federal agency charged with implementation of the I-864. In the rulemaking process for the I-864 DHS itself opined that a beneficiary may elect to waive her right to enforcement of the I-864.[85] This is consistent with the widely-recited view that a foreign national is a third-party contract beneficiary to the I-864. Contract beneficiaries may elect to waive their rights if they wish. Congress could have – but did not – elect to exercise its plenary power to create a statutory cause of action against immigration petitioners. It chose instead to use a contract as the vehicle to ensure support, and private contract rights are subject to waiver.

Conclusion

Around seven percent of U.S. marriages involve one or more foreign-born spouse.[86] In a career spanning potentially thousands of matrimonial matters, it is likely that a family law attorney will encounter one or more foreign-born parties. It is recommended that family law firms implement simple but strict protocols at the client intake stage to ensure they are screening for citizenship. Firms should assess both whether their client, as well as the opposing party, are U.S. citizens. If either party is foreign born a careful assessment should be made of how they secured immigration status in the United States. If status was secured through the spouse, it’s time to review this article.

[1] But see Geoffrey A. Hoffman, Immigration Form I-864 (Affidavit of Support) and Efforts to Collect Damages as Support Obligations Against Divorced Spouses — What Practitioners Need to Know, 83 Fla. Bar. J. 9 (Oct. 2009) (articulately sounding the alarm bell).

[2] The issues discussed herein are expanded upon be a pair of articles by the author, which analyze all available U.S. case law concerning enforcement of the I-864, both available for download at http://tinyurl.com/cocz6qp. Cf. Greg McLawsen, Suing on the I-864 Affidavit of Support, 17 Bender’s Immigr. Bull. 1943 (Dec. 15, 2012) (hereinafter McLawsen, Suing on the I-864); Greg McLawsen, Suing on the I-864 Affidavit of Support: March 2014 Update, 19 Bender’s Immig. Bull. 1943 343 (Apr. 1, 2014) (hereinafter McLawsen, Suing on the I-864: March 2014 Update).

[3] Since this is law of which we are speaking, exceptions naturally abound.

[4] See 8 U.S.C. § 1182.

[5] 8 U.S.C. § 1182(a)(4).

[6] See id. The determination is also made at the U.S. port of entry, though the public charge adjudication in family-based cases is chiefly done at the visa interview and residency application.

[7] 8 U.S.C. § 1182(a)(4)(B).

[8] Interim regulations for the I-864 were first published in 1997 and were finalized July 21, 2006. Affidavits of Support on Behalf of Immigrants, 62 Fed. Reg. 54346 (Oct. 20, 1997) (to be codified at 8 C.F.R. § 213.a1 et seq.) (hereinafter Preliminary Rules); Affidavits of Support on Behalf of Immigrants, 71 Fed. Reg. 35732 (June 21, 2006) (same) (hereinafter Final Rules).

[9] See Form I-864, Affidavit of Support (rev’d Mar. 22, 2013), available at http://www.uscis.gov/files/form/i-864.pdf (last visited Jan. 8, 2015).

[10] Form I-864, supra note 13, at 6. See also 8 U.S.C. § 1183a(a)(1)(A) (same requirement by statute).

[11] Annual Update of the HHS Poverty Guidelines, 79 Fed. Reg. 3593, 3593 (Jan. 22, 2014).

[12] Form I-864, supra note 13, at 7. In lieu of tiptoeing around gendered pronouns, beneficiaries and sponsors will be assigned the feminine and masculine herein, respectively, as this represents the vast majority of cases discussed herein.

[13] 8 U.S.C. § 1182(a)(4)(C).

[14] Indeed, the consular post may not require the Form I-864 for a fiancée. 9 FAM § 40.41 Public Charge n.12.6.

[15] U.S. Dep’t of State, Cable No. 98-State-112,510, I-864 Affidavit of Support Update Number 16: Public Information Sheet (no date provided).

[16] Cf. Charles Gordon et al., Immigration Law and Procedure § 63.05 [5][b].

[17] The Form I-134 Affidavit of Support was used prior to passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), Pub. L. No. 104-208, 110 Stat. 3009. Cf. Michael J. Sheridan, The New Affidavit of Support and Other 1996 Amendments to Immigration and Welfare Provisions Designed to Prevent Aliens from Becoming Public Charges, 31 Creighton L. Rev. 741 (1998) (discussing changes to the Affidavit of Support). The Form I-134 may still be used to overcome public charge inadmissibility for intending immigrants not required to file the I-864. See Instructions for Form I-134, Affidavit of Support (rev’d Feb. 19, 2014), available at http://www.uscis.gov/files/form/i-134instr.pdf (last visited Jan. 8, 2015).

[18] See Rojas-Martinez v. Acevedo-Rivera, 2010 U.S. Dist. LEXIS 56187 (D. P.R. June 8, 2010) (granting defendant’s motion to dismiss; holding that I-134 was not an enforceable contract).

[19] Form I-864, supra note 13, p. 7. See also 8 U.S.C. § 1183a(a)(2), (3) (describing period of enforceability).

[20] Hrachova v. Cook, No. 5:09-cv-95-Oc-GRJ, 2009 U.S. Dist. LEXIS 102067, at *3 (M.D. Fla. Nov. 3, 2009) ("[t]he view that divorce does not terminate the obligation of a sponsor has been recognized by every federal court that has addressed the issue").

[21] Davis v. Davis, No. WD-11-006 (Ohio Ct. App. May 11, 2012), available at http://tinyurl.com/olyvac3 (last visited Jan. 9, 2015).

[22] 8 C.F.R. § 213a.2(c)(2)(iii)(C).

[23] 8 U.S.C. § 1183a(f)(1).

[24] See, e.g., Matlob v. Farhan, Civil No. WDQ-11-1943, 2014 WL 1401924 (D.Md. May 2, 2014) (Memo. Op.) (following bench trial, holding joint sponsor jointly and severally liable for $10,908 in damages).

[25] See Form I-864A, Contract Between Sponsor and Household Member (rev’d Mar. 22, 2013), available at http://www.uscis.gov/sites/default/files/files/form/i-864a.pdf (last visited Jan. 8, 2015). Note that unlike the I-864, the I-864A does not set forth a complete recitation of the immigrant-beneficiary’s enforcement rights under the I-864, such as the right to attorney fees. Id., Page 3.

[26] Panchal v. Panchal, 2013 IL App (4th) 120532-U, No. 4-12-0532, 2013 Ill. App. LEXIS 1864, at *11 (Ill. App. Ct. 4th Dist. 2013). See also Liepe v. Liepe, Civil No. 12–00040 (RBK/JS), 2012 U.S. Dist. LEXIS 174246 (D.N.J. Dec. 10, 2012) (denying plaintiffs’ summary judgment motion against household member where plaintiffs failed to establish that the defendant executed an I-864A.

[27] Cf. USCIS Freedom of Information Act and Privacy Act, http://tinyurl.com/mulssd6 (last visited Jan. 8, 2015).

[28] Email from Robert Gibbs, Founding Partner, Gibbs Houston Pauw, to the author (Aug., 6, 2013, 15:18 PST) (on file with author but containing confidential client information).

[29] See, e.g.,. Counterpoint: Cyrus Mehta, Counterpoint: Ethically Handling Conflicts Between Two Clients Through the ''Golden Mean”, 12-16 Bender's Immigr. Bull. 5 (2007); Austin T. Fragomen and Nadia H. Yakoob, No Easy Way Out: The Ethical Dilemmas of Dual Representation, 21 Geo. Immigr. L.J. 521 (Summer 2007); Bruce A. Hake, Dual Representation in Immigration Practice: The Simple Solution Is the Wrong Solution, 5 Geo. Immigr. L.J. 581 (Fall 1991). See also, Doug Penn & Lisa York, How to Ethically Handle an I-864 Joint Sponsor, http://tinyurl.com/pp2h37t (AILA InfoNet Doc. No. 12080162) (posted No. 7, 2012).

[30] Liu v. Mund, 686 F.3d 418 (7th Cir. 2012).

[31] Liu, 686 F.3d 418.

[32] Id., at 422. But see Ainsworth v. Ainsworth, No. 02-1137-A, 2004 U.S. Dist. LEXIS 28962, at *4 (M.D. La. Apr. 29, 2004) (“the entire purpose of the affidavit is to ensure that immigrants do not become a ‘public charge’”), recommendation rejected, 2004 U.S. Dist. LEXIS 28961 (May 27, 2004).

[33] Id., at 423, 421.

[34] See, e.g., Love v. Love, 33 A.3d 1268 (Pa. Super. Ct. 2011). But see Mathieson v. Mathieson, No. 10–1158, 2011 U.S. Dist. LEXIS 44054, at *10, n. 3 (W.D. Penn., Apr. 25, 2011) (noting in dicta that the court would have held that income could be imputed to the beneficiary based on earning capacity); Barnett v. Barnett, 238 P.3d 594, 598 (Alaska 2010) (holding that “[e]xisting case law” supported the conclusion that earning capacity should be imputed to an I-864 beneficiary).

[35] See, e.g., Moody v. Sorokina, 40 A.D.2d 14, 19 (N.Y.S. 2007) (holding that trial court erred in determining I-864 created no private cause of action).

[36] See, e.g., Stump v. Stump, No. 1:04-CV-253-TS, 2005 U.S. Dist. LEXIS 45729, at *19 (D. Ind. May 27, 2005) (memo op.) (granting in part plaintiff’s motion for summary judgment; rejecting argument that noncitizen could have failed to perform duties under the I-864, as there was no support for proposition that third-party beneficiary could breach a contract).

[37] 8 U.S.C. § 1183a(e) (emphasis added). See also 8 U.S.C. § 1183a(a)(1)(C) (the sponsor “agrees to submit to the jurisdiction of any federal or state court for the purpose of actions brought”).

[38] See 8 C.F.R. § 213a.2(e) (support obligations commence when intending immigrant is granted admission as immigrant or adjustment of status); Chavez v. Chavez, Civil No. CL10-6528, 2010 Va. Cir. LEXIS 319 (Va. Cir. Crt. Dec. 1, 2010) (finding that “becoming a permanent resident” is the condition precedent).

[39] Possession of a facially valid residency card does not connote, per se, status as a permanent resident.

[40] Baines v. Baines, No. E2009-00180-COA-R3-CV, 2009 Tenn. App. LEXIS 761 (Tenn. Ct. App. Nov. 13, 2009) (holding that such an argument was inconsistent with the “clear language” of the statute).

[41] See, e.g., In re Marriage of Sandhu, 207 P.3d 1067 (Kan. Ct. App. 2009) (holding that beneficiary had no cause of action due to earnings over 125% of the Poverty Guidelines). See also Iannuzzelli v. Lovett, 981 So.2d 557 (Fla. Dist. Ct. App. 2008) (noting that beneficiary-plaintiff was awarded no damages at trial because she had failed to demonstrate “that she ha[d] been unable to sustain herself at 125% of the poverty level since her separation from the marriage”).

[42] Cheshire, 2006 U.S. Dist. LEXIS 26602, at *17.

[43] 8 C.F.R. § 213a.1. See also Love v. Love, 33 A. 3d 1268, 1277 (Pa. Super. Ct. 2011) (noting the “narrow” definition of income under state domestic code). Cf. McLawsen, Suing on the I-864, supra note 3, § I.C.

[44] 8 C.F.R. § 213a.1.

[45] Erler v. Erler, No. CV-12-02793-CRB, 2013 U.S. Dist. LEXIS 165814, at *21 (N.D. Cal. Nov. 21, 2013).

[46] See, e.g., Villars v. Villars, 305 P.3d 321 (Alaska 2013) (rejecting trial court’s finding that the beneficiary had received as “income” the entire earnings of another man with whom she had resided for part of the time period in question).

[47] Unlike contract judgments, spousal maintenance orders have special enforcement mechanisms in many states, making enforcement cheaper and easier. Furthermore, spousal maintenance – unlike payment on a contract judgment – is counted as income to the recipient for purposes of federal income tax, and is deductible for the payer.

[48] 33 A. 3d 1268 (Pa. Super. Ct. 2011). See also In re Marriage of Kamali, 356 S.W.3d 544, 547 (Tex. App. Nov. 16 2011) (holding that trial court erred in limiting support payments to an “arbitrary” 36-month period).

[49] Id., at 1273. See Pa. R. C. P. 1910.16-5 (grounds for deviating from support guidelines), available at http://tinyurl.com/lf4qhh2 (last visited Jan. 8, 2015).

[50] Id., at 1281 (Freedberg, J., dissenting).

[51] 332 P.3d 1016 (Wash. App. Div. II 2014). See also Greenleaf v. Greenleaf, No. 299131, 2011 WL 4503303 (Mich. Ct. App., Sep. 29, 2011) (last visited Oct. 18, 2012) (holding that a lower court erred by incorporating the I-864 into a support order). See also Varnes v. Varnes, No. 13-08-00448-CV, 2009 WL 1089471 (Tex. App., Apr. 23, 2009) (noting it was undisputed that beneficiary was not entitled to spousal support based on I-864 under either of the two statutory grounds allowed by Texas law).

[52] Id. (stating the issue narrowly, that none of the factors concerned “one spouse’s contractual obligation under federal immigration law”).

[53] See, e.g., Pavlenco v. Pearsall, No. 13-CV-1953 (JS)(AKT), 2013 U.S. Dist. LEXIS 169092 (E.D.N.Y. Nov. 27, 2013) (memo. order); Liu v. Mund, 686 F.3d 418 (7th Cir. 2012); Montgomery v. Montgomery, 764 F. Supp. 2d 328, 330 (D. N.H. Feb. 9, 2011); Skorychenko v. Tompkins, 08-cv-626-slc, 2009 U.S. Dist. LEXIS 4328 (W.D. Wis. Jan. 20, 2009); Stump v. Stump, No. 1:04-CV-253-TS, 2005 U.S. Dist. LEXIS 26022, *1 (N.D. Ind. Oct. 25, 2005); Ainsworth v. Ainsworth, No. 02-1137-A, 2004 U.S. Dist. LEXIS 28961, at *4 (M.D. La., May 27 2004); Tornheim v. Kohn, No. No. 00-CV-5084 (SJ), 2002 U.S. Dist. LEXIS 27914, (E.D. N.Y. Mar. 26, 2002) ("Plaintiff's suit arises under the laws of the United States . . .").

[54] Vavilova v. Rimoczi, 6:12-cv-1471-Orl-28GJK, 2012 U.S. Dist. LEXIS 183714, at *9 (M.D. Fla. Dec. 10, 2012) (finding that Congress has not expressly exercised the Supremacy Clause to divest state courts of concurrent jurisdiction); Winters v. Winters, No. 6:12-cv-536-Orl-37DAB, 2012 U.S. Dist. LEXIS 75069, at *5 (M.D. Fla. Apr. 25, 2012) (“while the federal statute requires execution of the affidavit, it is the affidavit and not the statute that creates the support obligation”). But see Cheshire v. Cheshire, No. 3:05-cv-00453-TJC-MCR, 2006 U.S. Dist. LEXIS 26602, at *1 (M.D. Fla. May 4, 2006) (stating that the court has jurisdiction pursuant to the I-864 statute).

[55] See, e.g., Younis v. Rarooqi, 597 F. Supp. 2d 552, 554 (D. Md. Feb. 10, 2009) (“[t]he signing sponsor submits himself to the personal jurisdiction of any federal or state court in which a civil lawsuit to enforce the affidavit has been brought”) (citing 8 U.S.C. § 1183a(a)(1)(C)).

[56] Delima v. Burres, No. 2:12–cv–00469–DBP, 2013 U.S. Dist. LEXIS 26995, at *12 (D. Utah Feb. 26, 2013). It appears the parties hired a Utah law firm to prepare immigration filings, including the I-864, but executed the Form in Montana.

[57] By signing the Form I-864, the sponsor also agrees to “submit to the personal jurisdiction of any Federal or State court that has subject matter jurisdiction of a lawsuit against [the sponsor] to enforce [his/her] obligations under this Form I-864.” Form I-864, at 7

[58] The choice of many beneficiaries to enforce the I-864 in federal rather than state court is somewhat puzzling. Practitioners may be inclined toward federal court on the partially-mistaken view that I-864 enforcement involves “federal law.” The better understanding is that enforcement is a suit on a contract, precisely the type of dispute that a state court of general jurisdiction is competent to adjudicate.

[59] Procedural doctrines prohibit the litigation both of matters that have already been actually litigated and that could have been litigated. The former is referred to as issue preclusion, the latter as claim preclusion. Cf. 18 Wright § 4406.

[60] No. 10–6138–AA, 2011 U.S. Dist. LEXIS 3803 (D. Or. Jan. 14, 2011) (granting defendant’s motion for summary judgment). By contrast, issue preclusion did not prevent the plaintiff-beneficiary’s federal court action in Chang v. Crabill, where the family law court stated that “[n]o request was made by the respondent for spousal maintenance of any kind.” No. 1:10 CV 78, 2011 U.S. Dist. LEXIS 67501 (N.D. Ind. June 21, 2011).

[61] Chang, 2011 U.S. Dist. LEXIS 67501.

[62] Yaguil v. Lee, 2:14-cv-00110-JAM-DAD, 2014 WL 1400959 (E.D.Cal.,2014) (Order Granting Defendant’s Motion to Dismiss).

[63] See, e.g., Matter of Khan, 332 P.3d 1016 (Wash. App. Div. II 2014) (stating in dicta that the beneficiary would not be prevent from maintaining a subsequent suit, as “the trial court did not adjudicate an action for beach of the sponsor’s I-864 obligation”); Yuryeva v. McManus, No. 01-12-00988-CV, 2013 Tex. App. LEXIS 14419, at *19 (Tex. App. Houston 1st Dist. Nov. 26, 2013) (memo. op.) (stating in dicta that an immigrant-beneficiary could bring a subsequent contract action on the I-864, despite failing to raise enforcement in the context of her divorce proceeding); Nasir v. Shah, No. 01-12-00988-CV, 2013 Tex. App. LEXIS 14419, at *19 (Tex. App. Houston 1st Dist. Nov. 26, 2013) (memo. op.) (“[w]hether or not plaintiff sought or was entitled to spousal support is irrelevant to defendants’ [sic.] obligation to maintain plaintiff at 125% [Poverty Guidelines]”).

[64] Cf. McLawsen, Suing on the I-864: March 2014 Update, supra note 3, § II.A.

[65] Form I-864, supra note 13, p. 7. See also 8 U.S.C. § 1183a(c) (remedies available to enforce the Affidavit of Support include “payment of legal fees and other costs of collection”).

[66] See, e.g., Sloan v. Uwimana, No. 1:11-cv-502 (GBL/IDD), 2012 U.S. Dist. LEXIS 48723 (E.D. Va. Apr. 4, 2012) (awarding fees in reliance on 8 U.S.C. § 1183a(c), subject to scrutiny for reasonableness pursuant to the Lodestar method).

[67] See, e.g., Barnett v. Barnett, 238 P.3d 594, 603 (Alaska 2010) (holding that fees were appropriately denied in absence of judgment to enforce I-864); Iannuzzelli v. Lovett, 981 So.2d 557 (Fla. Dist. Ct. App. 2008) (holding that the fees were appropriately denied in absence of damages; note that action was based on a prior iteration of Form I-864).

[68] Panchal v. Panchal, No. 4-12-0532, 2013 Ill. App. LEXIS 1864 (Ill. App. Ct. 4th Dist. 2013) (holding that the plaintiff-beneficiary could recover fees for prosecuting a contract claim on the I-864, but not for a concurrently pending dissolution action).

[69] Matter of Ortiz, No. 6:11-bk-07092-KSJ, 2012 Bankr. LEXIS 5324 (Bankr. M.D. Fla. Oct. 31, 2012) (granting summary judgment to beneficiary); Hrachova v. Cook, 473 B.R. 468 (Bankr. M.D. Fla. 2012).

[70] Stump v. Stump, No. 1:04-CV-253-TS, 2005 U.S. Dist. LEXIS 26022, at *6-7 (N.D. Ind. Oct. 25, 2005) (“The [sponsor] made this promise as consideration for the [beneficiary’s] application not being denied on the grounds that she was an immigrant likely to become a public charge”); Baines v. Baines, No. E2009-00180-COA-R3-CV, 2009 Tenn. App. LEXIS 761, at *13-14 (Tenn. Ct. App. Nov. 13, 2009); Cheshire v. Cheshire, No. 3:05-cv-00453-TJC-MCR, 2006 U.S. Dist. LEXIS 26602, at *11-12 (M.D. Fla. May 4, 2006).

[71] Form I-864, supra note 13.

[72] Cf. The Proposal (Walt Disney Studios 2009). The pertinent reference can be located at http://tinyurl.com/pmuxuyq (last visited Jan. 8, 2014).

[73] See, e.g., Farhan v. Farhan, Civil No. WDQ-11-1943, 2013 U.S. Dist. LEXIS 21702, at *3 (D. Md. Feb. 5, 2013) (conflicting evidence about subjective intent behind marriage, aside from the fact they had spent minimal time together and that the marriage had never been consummated, prevented summary judgment to I-864 defendant on defense of fraud). In Carlbog v. Tompkins the Sponsor alleged produced inadmissible translations of emails purporting to show that the I-864 beneficiary had designed a scam marriage. 10-cv-187-bbc, 2010 U.S. Dist. LEXIS 117252, at *8 (W.D. Wi., Nov. 3, 2010). But even if they had been admitted, the court held, the emails lacked sufficient particularity to pass summary judgment on the question of fraud. See also Cheshire v. Cheshire, No. 3:05-cv-00453-TJC-MCR, 2006 U.S. Dist. LEXIS 26602 (M.D. Fl., May 4, 2006) (following trial, finding no evidence adequate to prove plaintiff-beneficiary had defrauded defendant-sponsor into signing Form I-864 with a false promise of marriage, despite early marital problems).

[74] Erler v. Erler, No. CV-12-02793-CRB, 2013 U.S. Dist. LEXIS 165814, at *11 (N.D. Cal. Nov. 21, 2013) (order denying plaintiff’s motion for summary judgment and giving parties notice regarding possible summary judgment for defendant).

[75] A contract is rendered unenforceable if it was unconscionable at the time the agreement was entered into. See Restatement (2nd) § 208.

[76] Baines v. Baines, No. E2009-00180-COA-R3-CV, 2009 Tenn. App. LEXIS 761 (Tenn. Ct. App. Nov. 13, 2009). Cf. Kerry Abrams, Immigration Law and the Regulation of Marriage, 12-20 Benders Immigr. Bull. 1 (2007), text accompanying notes 376-80 (arguing that sponsor may not understand responsibilities under Affidavit).

[77] Id., at *16.

[78] Al-Mansour v Shraim, No. CCB-10-1729, 2011 U.S. Dist. LEXIS 9864 (D. Md., Feb. 2, 2011) (rejecting argument that the I-864 was an unconscionable contract of adhesion).

[79] Cf. Shereen C. Chen, The Affidavit of Support and its Impact on Nuptial Agreements, 227 N.J. Law. 35 (April 2004) (discussing I-864 in relation to Uniform Premarital Agreement Act).

[80] Compare Toure-Davis v. Davis, No. WGC-13-916, 2014 U.S. Dist. LEXIS 42522 (Dist. M.D. Mar. 28, 2014) and Erler v. Erler No. CV-12-02793-CRB, 2013 U.S. Dist. LEXIS 165814, at *1 (N.D. Cal. Nov. 21, 2013) and Shah v. Shah, Civil No. 12–4648 (RBK/KMW), 2014 U.S. Dist. LEXIS 4596 (D.N.J. Jan. 14, 2014) (all holding that nuptial agreements failed to waive I-864 enforcement); with Blain v. Herrell, No. 10-00072 ACK-KSC, 2010 U.S. Dist. LEXIS 76257 (D. Haw. July 21, 2010) (stating in dicta that nuptial agreements may waive I-864 support).

[81] Toure-Davis, 2014 U.S. Dist. LEXIS 42522, at *23. See also Erler, 2013 U.S. Dist. LEXIS 165814, at *7(reasoning that the defendant-sponsor could not “unilaterally absolve himself of his contractual obligation with the government by contracting with a third party”).

[82] Toure-Davis, 2014 U.S. Dist. LEXIS 42522, at *15; Erler, 2013 U.S. Dist. LEXIS 165814, at *7, n.1.

[83] Shah, 2014 U.S. Dist. LEXIS 4596, at *9.

[84] Id. at *11.

[85] Affidavits of Support on Behalf of Immigrants, 71 Fed. Reg. 35732, 35740 (June 21, 2006) (but clarifying that a sponsor’s duties to reimburse government agencies would remain unchanged).

[86] Luke Larsen and Nathan Walters, United States Census Bureau, Married-Couple Households by Nativity Status: 2011 (Sep. 2013), available at http://www.census.gov/population/foreign/ (last visited Jan. 22, 2014).

Ethical Use of On-Line Form Tools by Law Firms

Prepared as material for

7 Keys to Managing the 21st Century Practice Washington State Bar Association Continuing Legal Education January 22, 2016 (Seattle)

Digital form tools can be really useful for lawyers

Let’s stop doing data entry whenever possible. That’s the basic idea. If anyone at your firm is routinely inputting lots of information, you might want to explore whether you could automate that system. How? Fundamentally it’s by letting the person who originally has the information – often your client – input it into your system without human intervention.

Here are a few examples of how you might use a form tool in your practice. If you’re one of the many attorneys who feel their clients “don’t use computers,” start looking at your clients’ phones. Chances are that the phone is a computer. The tools discussed here will work nicely on web-enabled mobile devices.

  • Prospective clients. Sales professionals religiously collect data on any “lead” that enters their “intake funnel.” Whether we like that language or not, it’s common for lawyers not to memorialize the contact information, etc., of a prospective client before s/he sets up an initial appointment. Form tools can channel prospect data into with whatever contact database or Customer Relations Management (CRM) tool a firm is using.
  • Do you make your client sit in your lobby and fill out a doctor’s office-style questionnaire before you meet with them? Worse yet, does a staff person – or even you – spend time filling in a questionnaire while the client talks? What if this form could be shared with the client before the initial meeting, and the answers saved in whatever format it is that you ultimately need them?
  • Routine case information. I’m an immigration lawyer and need the same information for most clients in a given legal scenario. Becoming a citizen? There’s a standard 15-pages worth of information I’ll need for any such case. Even litigators with highly fact-specific matters often have standardized information that they collect on each case. That could come straight from the client.
  • Customer satisfaction surveys. What do our clients actually think about us? We could always ask them. The easiest way is with the so-called net promoter score – a one question survey that assesses whether they’d actually recommend us.[1] Note that unlike other tasks described here, this one does not necessarily capture data protected by client confidence rules, so your choice of (free) tools may be broader.

The duty of tech competence

An attorney has an ethical responsibility to competently use technology that she chooses to deploy in practice.[2] Why? As a derivative responsibility with respect to her many fiduciary duties to a client. For present purposes the primary duty is that of safeguarding client information.[3] When using technology to handle client information, an attorney has the responsibility to ensure that the technology offers appropriate safeguards.[4] This is no different than saying that if an attorney elects to store client files in a warehouse, she needs to take appropriate steps to ensure the files are safe. Well, what steps count as appropriate in this context?

In 2012 the Washington State Bar Association’s former Committee on Professional Ethics issued Advisory Opinion 2215 concerning the use of online data storage by third parties (i.e., “cloud computing”).[5] Recognizing that it was “impossible” to give “specific guidelines” about appropriate security measures given the changing nature of technology, the Opinion sets forth seven considerations to be taken:

  1. Familiarization with the potential risks of online data storage and review of available general audience literature and literature directed at the legal profession, on cloud computing industry standards and desirable features. 2. Evaluation of the provider’s practices, reputation and history.3. Comparison of provisions in service provider agreements to the extent that the service provider recognizes the lawyer’s duty of confidentiality and agrees to handle the information accordingly.4. Comparison of provisions in service provider agreements to the extent that the agreement gives the lawyer methods for retrieving the data if the agreement is terminated or the service provider goes out of business.5. Confirming provisions in the agreement that will give the lawyer prompt notice of any nonauthorized access to the lawyer’s stored data.6. Ensure secure and tightly controlled access to the storage system maintained by the service provider.7. Ensure reasonable measures for secure backup of the data that is maintained by the service provider.[6]

Deploying this seemingly extensive test is supposed to require less sophistication than complete mastery of the technology at issue.[7] But the decision is clear that this due diligence inquiry should be made of any technology that handles client information. The crude bottom line is that client information almost certainly needs to be encrypted when it is stored “online.”

The duty to safeguard client data follows also from the attorney’s duty of competence.[8] The now-famous Comment 8 to Model Rule 1.1 states:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.[9]

At last count 18 states have adopted Comment 8, though Washington is not yet one of them.[10] It is almost certainly a safe bet that ours will soon be among the jurisdictions adopting this generalized duty of competence. In the meantime, a Washington attorney still has a duty to competently deploy any technology that she chooses, pursuant to Advisory Opinion 2215. If adopted, Comment 8 would entail that an attorney might be blameworthy, not only for incompetently deploying technology, but for incompetently failing to use technology when doing so presents a benefit to her clients.

How encryption works, in 95 words

By default your data is stored online in the same format in which you access it. This means that if bad people can access the data, they can use the data as you can. Data encrypted while at rest is scrambled and requires a cipher to be used. So if bad guys get the data, it’s as much use as the Washington Reporters without a law degree. Allowing access to unencrypted data would be like a magic Washington Reporters series that beamed a law degree and 40 years of practice experience into the reader’s head.

Possible form solutions

Here are a half-dozen tools that I’ve personally experimented with for building forms. There are many more out there, but these are some of the biggest players. Other factors being equal, you’ll want to gravitate to popular tools, since industry reputation is one of the seven factors endorsed by Advisory Opinion 2215. As a bonus, support tends to be better for these established tools.

As is ever the case with technology, before starting to shop, first decide what problem you are trying to solve. Consider:

  • How are you going to be using this data? Is this background information about a client that you want to be able to reference later for context? Is this data that you want to be able to import into some form of document automation tool (Word can be such a tool)?
  • What type of data is being collected? Will you be capturing sensitive financial data, social security numbers, etc.? Or do you need to store only the client’s name and email address… or just a 1-10 rating of an interaction they had with your office staff?
  • What are the dividends you stand to gain? Are you collecting data for a use that’s core to your practice, used in daily client work? Or is this a small amount of information used for an isolated purpose? Some tools are cheaper and easier to implement than others.

Google Forms (Free)

Google offers an excellent, free forms tool that seamlessly integrates with Google Drive (also free). I use this tool often for various non-client scenarios. In the screenshot below, for example, I was creating a form to collect information about colleagues who expressed interested in collaborating with my firm.

Google recently revamped Forms, and its drag-and-drop interface is now even better than it was. The catch? Google Forms does not presently support encryption. There are, however, third-party services that can encrypt data on Google Drive, which is where information from Forms is stored.[11] A second limitation of Forms, however, is that it does not support “save and continue” functionality, which you need for anything beyond a very brief form. Imagine the anguish of spending ten minutes filling out a form, getting interrupted, shutting down your computer, and then realizing you need to start back at square one! Note also that Google’s terms of service reserve the right for its staff to access your data. The implications of that clause are debated, but it’s somewhat of a moot point in present context since the fact Drive data is unencrypted makes it problematic for many law firm uses.

JotForm (free for up to 100 submissions)

JotForm is a drag-and-drop form builder which is probably a great fit for many attorney uses. The user interface of the forms-builder is intuitive, if not beautiful. (See screen shot below). Happily, JotForm – as of pretty recently – supports encryption and also has a save/continue feature. The encryption tool is potentially clunky depending on how you plan to manipulate the data once a form is submitted.

WuFoo ($29.95/mo for “bona fide” plan)

WuFoo is another drag-and-drop form builder that works basically like JotForm. Personally, I feel their interface is easier to use, and that it’s easier to customize a great-looking end product. Like JotForm, WuFoo offers encryption. The rub – you have to pay for it.

Intake 123 ($9-$79/mo)

This tool was specially crafted for lawyers with security issues in mind. For this reason, it’s designed around lawyer “use cases,” meaning its templates and interface point you towards common law scenarios such as client intake. When I tried it, I didn’t enjoy my user experience. Their customer service was responsive, however, and the fact that they designed their tool for lawyers means that you could get (for example) an intake questionnaire set up more quickly than with other tools.

Gravity Forms ($39/license, not per month)

One last tool that I’ve experimented with is Gravity Forms. This tool is a plugin for your Wordpress site; if you don’t know what that means, probably stop reading. As of pretty recently, Gravity Forms allows for encryption and save/continue functionality. A major appeal is that you pay for the one-time license and are set to go. Easy to use, this tool can build a form that’s nicely integrated into your Wordpress site (though the other tools mentioned above can be embedded by a script). The fact that it’s hosted on your site’s host, though, means that if you bungle something, your data will be lost. This may or may not have happened to your author at the time he was experimenting with using this for a client intake tool (though if it did happen to your author, your author assures you that no actual client data was lost or compromised).

Pdf + Clio Hack (free)

The cheapest technology is always the technology you already have.[12] Consider the following scenario.

What I wanted to do was populate official immigration forms with information pulled from a database. I created customized pdf versions of the immigration forms, with unique identifiers for each field. Armed with that, I could pull data from any spreadsheet to populate the document. The trick was getting information from my client into the spreadsheet.

At first I tried using a JotForm, but it was cumbersome to do this with the encryption they offered. Decrypting and manipulating a particular set of client data was just a bit of a hassle. What to do?

We’ve long been users of WSBA-endorsed Clio,[13] a cloud-based practice management system I heartily recommend. Clio includes the feature of a secure client portal for the exchange of documents. So, we created a questionnaire (first in Word, then converted to pdf) with data fields whose names matched the immigration form we wanted to populate. The client simply completes the pdf on her computer or mobile device, then uploads it to her secure file on Clio. In two quick steps we extract the data from the questionnaire pdf (in .txt format) and import it into the immigration form. Mission accomplished.

What’s nice about this approach is that it keeps all client data isolated in that client’s secure case file. Instead of a master spreadsheet with lots of different client data, there just a single .pdf in the client’s folder, from which we can easily pull and manipulate data. Also, there wasn’t a dime of expense, time aside.

[1] Sam Glover, Net Promoter Score: the One Number You Need to Grow Your Law Practice, Lawyerist, Oct. 28, 2015, http://bit.ly/1m6OW3M.

[2]Cf. Megan Zavieh, Luddite Lawyers Are Ethical Violations Waiting To Happen, Lawyerist, July 10, 2015, http://bit.ly/1S9AdBc.

[3]See RPC 1.6.

[4] RPC 1.6, Cmt. 16 (“A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision. See Rules 1.1, 5.1 and 5.3.”).

[5] Washington Bar Association Advis. Op. 2215 (2012), available athttp://bit.ly/1zdnBBu (last visited Dec. 22, 2015).

[6]Id.

[7]Id. (“It is also impractical to expect every lawyer who uses such services to be able to understand the technology sufficiently in order to evaluate a particular service provider’s security systems.”)

[8]Id. (A lawyer has a general duty of competence under RPC 1.1, which includes the duty ‘to keep abreast of changes in the law and its practice’”) (quoting RPC 1.1).

[9] Model Rule 1.1, Cmt. 8.

[10] Robert Ambrogi, 13 15 17 18 States Have Adopted Ethical Duty of Technology Competence, LawSites, Dec. 17, 2015, http://bit.ly/1MGgSS1.

[11] Dennis O’Reilly, Two free ways to encrypt Google Drive files, CNet, July 2, 2013, http://www.cnet.com/how-to/two-free-ways-to-encrypt-google-drive-files/.

[12] Actually, not always, since your time is valuable, and wasting time on ineffective tools can be very costly.

[13]Cf. www.goclio.com.

The Ethical Implications of Drafting A Form I-864, Affidavit of Support for a Joint Sponsor

In this piece we explore the ethics of whether attorneys should draft the Form I-864 for a co-sponsor, where the attorney represents the petitioner and/or beneficiary in the family immigration case. Because the new I-864 requires an attorney-client relationship with the co-sponsor, and because that relationship compromises the attorney's duties to his other immigration clients, we conclude attorneys should stop drafting I-864s for co-sponsors. This piece was originally published as: The Rules Have Changed: Stop Drafting I-864s for Joint Sponsors, Greg McLawsen and Gustavo Cueva, 20 Bender’s Immigr. Bull. 1287 (Nov. 15, 2015).

This paper may be downloaded free of charge here

Download our free Guide to completing the I-864 here


It is a pickle that every family immigration attorney has had to resolve. The young college couple with lots of love and zero income. The struggling first-generation American, petitioning for mom and dad. They are going to need I-864 Joint Sponsors,[1] and they have paid you to be their attorney. Do you help with the Joint Sponsor’s I-864?

The pickle, of course, arises from the serious legal implications of signing the Form I-864. Your intending immigrant client will have a right to sue the Joint Sponsor for support if the need arises.[2] What, if any duties do you owe to the Joint Sponsor? Are you presented with a conflict of interest? Following recent amendments to the 864-series forms, the answers to these questions have become at once simpler and more frustrating. Starting October 6, 2015 attorneys are required to certify under penalty of perjury that they have an attorney-client relationship with any Joint Sponsor for whom the attorney drafts a Form I-864. In this article we suggest that either fully embrace their fiduciary duties to Joint Sponsors – a role that we believe is extremely problematic and best avoided – or else as a strict policy avoid drafting Joint Sponsor I-864s.

Who is a Sponsor?

When it comes to your relationship to the Joint Sponsor, there are only two possibilities: she is either your client, or she is not. Period. Until this summer some attorneys believed that they could draft a Joint Sponsor’s I-864 while simultaneously disclaiming an attorney-client relationship with that individual. For reasons explained below that is no longer possible.

If a Joint Sponsor is an attorney’s client, the attorney must, among other duties, assess conflicts of interest.[3] But that duty is triggered only if there is an attorney-client relationship with the Joint Sponsor.[4] Many attorneys appear to take the approach advocated for by Lisa York in an AILA practice advisory.[5] Ms. York recommends providing the joint sponsor with a packet containing the Form I-864 and official instructions, along with a disclaimer “that explicitly states that I do not represent the Joint Sponsor.”[6] While she would not draft the Form for the Joint Sponsor, she would check the Form for sufficiency and provide feedback if necessary via an intermediary.[7]

In reality, this completely hands-off approach often proves extremely difficult. Especially for firms serving populations with little formal education, successful completion of the technical I-864 can prove a true obstacle without assistance of an attorney. Hence, many practitioners feel the need to assist Joint Sponsors in order to keep their clients’ cases moving forward. Anecdotally, it appears common for attorneys to offer some degree of direct assistance to Joint Sponsors in completing the Form I-864.[8]

Prior to the form revisions discussed below, it may have been possible to draft a Joint Sponsor I-864 while simultaneously disclaiming an attorney-client relationship with that individual.[9] A lawyer does not automatically become an individual’s attorney merely by virtue of drafting a document for her signature. In litigation, for example, an attorney does not represent each witness for whom she drafts a declaration. We could term this the Have-Your-Cake-And-Eat-It-Too solution to Joint Sponsor I-864s: directly assist with drafting the I-864 while carefully disclaiming an attorney-client relationship. Certainly this is higher risk than the Hands-Off approach.[10] But the Have-Your-Cake approach offered attorneys a compromise solution that kept cases moving toward completion, while offering a feasible resolution of their relationship with Joint Sponsors. Unfortunately, this solution is no longer available because an attorney can no longer disclaim an attorney-client relationship if she drafts a Form I-864 for a Joint Sponsor.

The revisions and their import.

The Form I-864 now requires the preparer to complete the following provision:

□ I have requested the services of and consented to ___________________________ who □ is □ is not an attorney or accredited representative, preparing this affidavit for me.[11]

The Form further requires the preparer, if an attorney or BIA-accredited representative, to complete the following:

□ I am an attorney or accredited representative and my representation of the sponsor in this case □ extends □ does not extend beyond the preparation of this affidavit.

NOTE: If you are an attorney or accredited representative whose representation extends beyond preparation of this affidavit, you must submit a completed Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, with this affidavit. [12]

The preparer further certifies under penalty of perjury that she “prepared this affidavit on behalf of, at the request of, and with the express consent of the sponsor.”[13]

The Form I-864EZ contains both of the above provisions.[14] On the Form I-864A, both the Sponsor and the Household Member are required to certify whether she has consented to an attorney preparer, as quoted above.[15] Likewise, on the Form I-864A the preparer must certify the nature of her representation of the Sponsor and Household Member, as quoted above.[16]

The new certification by the Sponsor merely consents to the attorney “preparing this affidavit for me.” Yet a new challenge is created by the certification of the preparer: that she has a “representation of the sponsor.” Representation, of course, implies that an attorney preparer certifies, under penalty of perjury, that she has an attorney-client relationship with the Sponsor. This is the critical development: an attorney preparer must certify that she represents the sponsor, at least for purpose of preparing the form.

But – one may counter – the Forms allow an attorney to specify that the representation does not extend “beyond the preparation of [the] affidavit.” While true, this misses the point. Prior to the current iterations of the I-864 forms, it may have been possible for an attorney to disclaim representation of a Joint Sponsor altogether. That is now no longer the case. Whether attorneys may effectively limit their representation of the Joint Sponsor is discussed below. But once the Sponsor becomes a client this triggers the duty to assess conflicts of interest, even for a limited representation. Regardless of the scope of representation, a client is a client.

Conflicts of interest between current clients are governed by ABA Model Rule 1.7(a):

Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

A Joint Sponsor’s interests are unlikely to be “directly adverse” to the attorney's’ primary client since the two ought to share the goal of securing resident status for the primary client.[17] Generally an attorney may not rely on a boilerplate written disclaimer to verify that clients have non-adverse interests.[18] Rather, an attorney should actually consult with his second client – the Joint Sponsor. But most Joint Sponsors will be analogous to scenarios sanctioned by ethics boards. A South Carolina opinion, for example, advises that an attorney may represent the purchaser and seller in a real estate transaction:

If the attorney is employed simply for the purpose of performing the ministerial acts associated with "closing the deal," and he is neither expected nor required to render legal advice to either party in connection with the transaction, no conflict of interest appears and Rule 1.7 does not appear to be implicated.[19]

As in the real estate transaction, a lawyer may seek to limit his involvement to the ministerial act of completing a rule-compliant I-864 for the Joint Sponsor, and in doing so may avoid “directly adverse” interests.[20]

A trickier query is whether there is a “significant risk” that representation of the Joint Sponsor will “be materially limited by the lawyer’s responsibilities” to her intending immigrant client.[21] As summarized by the Tennessee ethics board, this inquiry turns on the likelihood that a future conflict will arise:

The critical questions are: what is the likelihood that a difference in interests will eventuate and, if it does, will it materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.[22]

I-864 beneficiaries can, and most certainly do, sue their sponsors for the support promised under the Affidavit.[23] Yet it appears to be exceedingly rare for I-864 beneficiaries to enforce their support rights against a Joint Sponsor or Household Member. We are aware of only two reported decisions in which a Household Member was sued for I-864 support,[24] and of no case involving a judgment against a Joint Sponsor.[25] Likewise, should the intending immigrant receive means-tested public benefits during the sponsorship period, a government agency could theoretically sue a Joint Sponsor or Household Member for the cost of those benefits. But we are aware of no jurisdiction in the United States where agencies are actively pursuing I-864 Sponsors of any designation. Albeit that it is unlikely the intending immigrant will take legal action to recover support from a Joint Sponsor, the magnitude of those claims is substantial. The Joint Sponsor, of course, stands to be on the hook for years of support at 125% of the Federal Poverty Guidelines, currently $14,712 annually for a household size of one.[26]

The following thought experiment may be helpful. In Scenario (1) a close friend of yours seeks your advice about whether he should execute, as Joint Sponsor, an I-864. The I-130 petitioner is a student of his who married a Canadian woman last week following a bachelor’s party in Las Vegas. In Scenario (2) the facts are the same, but you represent the young lovebirds and the Joint Sponsor isn’t a friend. We suspect that an attorney’s interactions with the Joint Sponsor in these two scenarios would be revealingly different. In Scenario 1, the attorney would stress the serious financial liabilities of the I-864, and would probably present them in a way that would tend to discourage the individual from agreeing to be a sponsor. In Scenario 2, the attorney is duty-bound to advance the lovebirds’ immigration case. The attorney will recite the legal implications of the I-864 when communicating with the would-be Joint Sponsor, but we suspect the tenor of this interaction is markedly different than Scenario 1. While a cold statistical calculation under Model Rule 1.7(a)(2) may indicate the absence of a current conflict, we believe the opposite conclusion is revealed if practitioners reflect on how they actually interact with Joint Sponsors.

Is a G-28 required?

As an aside, there will likely be confusion going forward as to whether an attorney must file a G-28 if she prepares a Form I-864 for a Joint Sponsor. The Form I-864 itself provides that an attorney must file a Form G-28 if her “representation [of the sponsor] extends beyond preparation of this affidavit.”[27] Yet puzzlingly, the official instructions to the Form I-864 state that a preparer must always submit a Form G-28 for the sponsor, that is, regardless of how the preparer has answered the above item.[28] The operative paragraph of the instructions does not differentiate between primary and joint sponsors.[29] The official instructions to the Form G-28 instruct that it must be filed whenever a person” acts in a representative capacity.”[30] Since the Form I-864 requires the attorney to certify that she represents the sponsor, at least in some scope, the safest reading appears to be that a Form G-28 must be filed for any joint sponsor for whom the attorney prepares a Form I-864. Note that repeated failure to file a required Form G-28 may, by itself, subject a practitioner to DHS discipline.[31]

Solutions.

With the new forms, there are at least three ways that lawyers can approach preparation of Joint Sponsor I-864s. Each has its own benefits and risks.

(1) Hands Off.

As has always been the case, the safest approach is to steadfastly refuse contact with the Joint Sponsor. As proposed by Ms. York, the intending immigrant client or I-130 petitioner can be provided with the required forms and official instructions, along with guidelines for who would qualify as a Joint Sponsor and what information is needed for the I-864. If the Joint Sponsor requires assistance to complete the Form, she can seek that assistance from another attorney. Practitioners may find it helpful to arrange reciprocal referral arrangements with a colleague, where each agrees to offer I-864 services to each other’s Joint Sponsors at a predetermined rate. Alternatively, or additionally, the firm can provide DIY instructions to the Joint Sponsor, via the clients. To avoid inadvertently giving legal advice through those instructions it would be preferable to have them drafted by a third party. [32] For this reason we have made available on our website a downloadable step-by-step guide to completing the Form I-864 which is freely available.[33]

Undoubtedly the Hands Off approach will sometimes be vexing. Clients will vent that they are not getting the service ‘that they paid for’ and case progress will be slowed.[34] The terse answer to this is that nobody said lawyering was easy, and sometimes ethical obligations lead to inconvenience.[35] But it is also unclear that the Hands Off approach will take any longer, or cost the client any more, than if the attorney drafts the Joint Sponsor’s Form. Most attorneys likely know a colleague of equal ability and comparable cost. Why should it be more expensive, or take longer, for the second attorney to prepare the Joint Sponsor I-864 than for the first? This seems especially true if the first attorney has the referral arranged on a standby basis to smooth logistics. Indeed, if this economic supposition is accurate, we might wonder if attorneys want to keep Joint Sponsor drafting, at least in part, simply to avoid losing the business.

(2) Limited Representation.

Alternatively, an attorney may choose to embrace representation of the Joint Sponsor, but seek to limit as narrowly as possible the scope of that representation.[36] (Recall it is not possible to disclaim representation altogether). On this approach, the scope of representation would be designed to include preparation of the Form and not one iota more.

Under Model Rule 1.2(c) “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”[37] A common use of a limited scope representation, of course, is to deliver “unbundled” legal services, such as where an attorney represents a family law client in only a portion of a divorce case.[38] To take the Limited Representation approach, the attorney must cleave very finely the scope of representation, telling the Joint Sponsor: “I am preparing this contract for you, as your attorney, but am not going to advise you about the wisdom of signing it.”

Note that some may believe that completing an I-864 is merely “filling out a form” rather than drafting a contract. We believe that view is profoundly misguided. Once completed and executed, the Form I-864 is a contract, and an attorney preparing the form is therefore drafting a contract.[39] Under 8 C.F.R. § 1.2 legal representation includes engaging in practice, which means: “preparation or filing of any brief or other document, paper, application, or petition on behalf of another person or client before or with DHS.” Moreover, at least in Washington State it is per se the practice of law to commercially “draft” or “complete” an immigration form for another.[40] We note the extreme irony of attorneys minimizing their role in drafting I-864s as merely “filling out forms.” As a profession we have aggressively pursued unauthorized immigration practitioners on the view that they are engaged in the unauthorized practice of law.[41] The notarios, however, insist that they merely help clients “fill out forms.”[42] We cannot have it both ways. If notaries engage in the unauthorized practice of law by drafting immigration law instruments, attorneys need to own up to their duties when they draft the same.

At the very least, an attorney taking the Limited Representation approach would need to advise the Sponsor that she would not be advising the Joint Sponsor about the consequences of signing the Form that she was preparing as that Joint Sponsor’s attorney. Moreover, limited scope representation must be “reasonable under the circumstances.”[43] Under this vague imperative, is it reasonable to prepare a contract with potentially life-long financial obligations for a client, without offering advice about what those consequences are? Perhaps that is reasonable, but we do not plan to be in the situation of defending the position.

(3) Non-Limited Representation + Waiver.

A third and final approach to working with Joint Sponsors is to presume that the scope of representation – whether by design or imputation – will exceed mere preparation of the Form. In other words, the attorney accepts that her duties include more than merely completing the Form in a rule-compliant manner. On this approach, the attorney accepts that her scope of representations includes a holistic duty to advise the Joint Sponsor about the consequences of executing the I-864.

As described above, we believe the attorney must assume that a representation of this nature involves a current conflict of interest. That being the case, the attorney may represent the Joint Sponsor on this analysis only if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.[44]

Prong (4) presents a minor headache for the attorney, but is probably accomplishable. The attorney would have to articulate in writing to both primary client and Joint Sponsor the nature of the conflict as she understands it.[45] In essence, the attorney would need to explain to the Joint Sponsor that she is incentivized to downplay the consequences of signing the form.[46] To the primary client, the attorney would need to explain that her advice to the Joint Sponsor could lead the individual to refuse signing the Form I-864.

Under Prong (1) the attorney would need to hold the belief that she can advance the case of her intending immigrant client while simultaneously protecting the interests of the Joint Sponsor. We believe this is suspect for precisely the same reason that there is a current conflict of interest under Model Rule 1.7(a): the attorney will be incentivized to downplay the risks of signing the Form I-864 in order to advance the case of her intending immigrant client.

Furthermore, we do not believe an attorney may avoid the above prohibition by securing a “waiver” of the conflict by the Joint Sponsor. Bruce Hake has long argued – in the context of employment-based immigration – that advance conflict waivers are per se unethical.[47] An attorney’s ethical duties cannot be avoided or diminished by contract, except as provided for within the ethical rules themselves. The sole means of continuing a joint representation with a current conflict of interest is through meeting the four prongs of Model Rule 1.7(b).

Conclusion.

Joint Sponsor I-864s present immigration attorneys with an inconvenient tension between expediency and ethical adherence. Attorneys have long waivered on whether to draft such documents, but we respectfully submit that the recent form revisions tip the balance in favor of a single conclusion: we should all get out of the business of drafting Joint Sponsor I-864s.


 

[1] This article assumes familiarity with financial sponsorship under the Form I-864. A joint sponsor, of course, is a sponsor who is not the immigration petitioner. 8 C.F.R. § 213a.2(b)(1). Joint Sponsor and Co-Sponsor have the same meaning, though we use Joint Sponsor exclusively in this article. Cf. 9 FAM 40.41 N6.2(c).

[2] The right of the Form I-864 beneficiary to recover support from her Sponsor has been covered extensively by the first author of this article. Cf. Greg McLawsen, The I-864 Affidavit of Support: An Intro to the Immigration Form You Must Learn to Love/Hate, Vo 48. No. 4 ABA Fam. L. Quarterly 1 (Winter 2015) (“McLawsen 2015”); Greg McLawsen, Suing on the I-864 Affidavit of Support; March 2014 Update, 19 Bender’s Immigr. Bull. 343 (Apr. 1, 2014); and Greg McLawsen, Suing on the I-864 Affidavit of Support, 17 Bender’s Immigr. Bull. 1943 (Dec. 15, 2012) (“McLawsen 2012”) (discussing enforcement of the Form I-864 as a contract).

[3] ABA Model Rule 1.7(a)(1) & (2).

[4] ABA Model Rule 1.7(a) (“. . .a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. . .”).

[5] Doug Penn & Lisa York, How to Ethically Handle an I-864 Joint Sponsor (posted Nov. 7, 2012), AILA Doc No. 12080162. 

[6] Id. at 2.

[7] Id. (“To avoid the appearance of representation, I never communicate with the joint sponsor directly”).

[8] During conference presentations on the Form I-864, audience members have expressed this view to the first author of this article.

[9] But see infra, text accompanying notes 43 et seq. (discussing definition of representation under 8 C.F.R. § 1.2).

[10] Risks included the possibility that the attorney would ineffectively disclaim an attorney-client relationship with the Joint Sponsor. That risk was far from trivial, as it appears many attorneys used no written disclaimer, and relied solely on an oral explanation to the Joint Sponsor of the nature of their relationship.

[11] Form I-864, Affidavit of Support Under Section 213A of the Act (rev’d July 2, 2015), pg. 9, Part 8, Item 2, available at http://www.uscis.gov/i-864.

[12] Form I-864, page 11, Part 10, Item 7.b (emphasis added).

[13] Form I-864, page 11.

[14] Form I-864EZ, Affidavit of Support Under Section 213A of the INA (rev’d July 2, 2015), Page 4, Part 6, Item 2, and Page 6, Part 7, Item 7.b, available at http://www.uscis.gov/i-864ez.

[15] Form I-864A, Contract Between Sponsor and Household Member (rev’d July 2, 2015), Page 4, Part 5, Item 27 (sponsor’s certification), and Page 5, Part 6, Item 2 (household member’s certification), available at http://www.uscis.gov/i-864a.

[16] Id. Page 7, Part 8, Item 7.b. Note that the preparer must answer the conjunctive question of whether her representations “of the household member and sponsor” extend beyond preparation of the I-864A. It’s unclear how a preparer should answer this query if her scope of representation for one, but not the other, extends beyond preparation of the I-864A. The best approach would appear to be an explanation in Part 9 Additional Information.

[17] ABA Model Rule 1.7(a)(1). By referring to the “primary client” we do not suggest that such individual is ‘more’ of a client to whom greater duties are owed. Cf . Bruce Hake, Advance Conflict Waivers are Unethical in Immigration Practice — Debunking Mehta's ``Golden Mean',' 12-11 Bender's Immigr. Bull. 01 (2007), text accompanying note 23 (attacking the proposition that a lawyer may subordinate duties owed to one client to a “primary” client).

[18] Washington State Ethics Op. 2064 (2004), available at http://bit.ly/1VKdak7 (“. . . under [Washington State] RPC 1.7, the lawyer must make a judgment that the representation being undertaken ‘will not be adversely affected.’ This responsibility on the lawyer cannot be waived in advance and the lawyer must continuously assess his representation of clients with potentially conflicted interests.”).

[19] South Carolina Ethics Op. 91-30 (1991), available at http://bit.ly/1LEqyBC..

[20] For a discussion of limitations on the scope of representation please see below.

[21] ABA Model Rule 1.7(a)(2). Cf. ABA Model Rule 1.7, cmt. 8 ( “The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.”).

[22] Tennessee Ethics Op. 2013-F-157 (2013) (emphasis added), available at http://bit.ly/1LEqFNn.

[23] McLawsen 2015, supra note 2; McLawsen 2014, supra note 2; McLawsen 2012, supra note 2 (all discussing cases involving enforcement of I-864 support against sponsors). These enforcement actions commonly, though not always, arise in conjunction with divorce proceedings. The I-864 beneficiary also has standing to prosecute her claims in a state or federal civil action.

[24] Panchal v. Panchal, 2013 IL App (4th) 120532-U, No. 4-12-0532, 2013 Ill. App. LEXIS 1864, at *11 (Ill. App. Ct. 4th Dist. 2013); Liepe v. Liepe, Civil No. 12–00040 (RBK/JS), 2012 U.S. Dist. LEXIS 174246 (D.N.J. Dec. 10, 2012).

[25] But see County of San Bernardino Child Support Division v. Gross, E054457, 2013 Cal. App. LEXIS 5156 (Cal. App. 4th Dist. July 23, 2013) (noting prior trial court order “confirming that, despite the divorce proceedings, the [joint sponsor’s I-864] was enforceable”).

[26] See Annual Update of the HHS Poverty Guidelines, 80 Fed. Reg. 3236 (Jan. 22, 2015) (setting forth 2015 Poverty Guidelines).

[27] Form I-864, page 11, Part 10, Item 7.b (emphasis added). See Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative (rev’d Mar. 4, 2015), available at http://www.uscis.gov/g-28.

[28] Instructions for Form I-864, page 10 (“If the person who helped you prepare your affidavit is an attorney or accredited representative, he or she must also submit a completed Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, along with your affidavit.”). See also Instructions for Form I-864A, Page 6 (same), Instructions for Form I-864EZ, Page 7 (same).

[29] Id. (“This section must contain the signature of the person who completed your affidavit, if other than you, the sponsor. . .”).

[30] Instructions for Notice of Entry of Appearance as Attorney of Accredited Representative (rev’d Mar. 4, 2015), Pg. 1. Cf. 8 C.F.R. § 292.4(1).(a)

[31] USCIS, Statement of Intent Regarding Filing Requirement for Attorneys and Accredited Representatives Participating in Group Assistance Events (rev’d Feb. 28, 2011) (“. . .a practitioner who consistently violates the requirement to file a Form G-28 may be subject to disciplinary sanctions under DHS professional conduct regulations. . .”) available at http://1.usa.gov/1NAwhXD.

[32] We owe this point to our respected AILA-Washington colleague, Robert Gibbs of Gibbs Houston Pauw.

[33] Navigate to www.pugetsoundlegal.net à News, then select “I-864” from the topics menu.

[34] This particular issue could be at least partially alleviated by: (1) ensuring clients are screened at intake and advised as to whether they will need a Joint Sponsor; and (2) ensuring that the letter of engagement clearly states that work for Joint Sponsors is not included in the legal fee.

[35] This observation has been made by the exceedingly helpful and not remotely terse Jeanne Marie Clavere, ethics advisory counsel at the Washington State Bar Association.

[36] This approach had been advocated to the authors by our respected AILA-Washington colleague, Jay Gairson.

[37] Cf. Washington State Ethics Op. 1987 (2002), available at http://bit.ly/1WSu3pT (limited scope representation should be commenced only “after consultation and a full disclosure of the material facts”) (last visited October 8, 2015).

[38] Cf. ABA Standing Committee on the Delivery of Legal Services, Ethics Opinions, www.bit.ly/1K48cDZ (last visited Sep. 12, 2015) (collecting opinions on unbundled of legal services).

[39] Note the analogs in other practice areas that rely in part on “forms” to practice law. Many family law pleadings, for example, start with mandatory forms promulgated by a state authority. Likewise, many estate planning lawyers may begin drafting a will by using a commercial form. But in both cases the attorney is responsible for the resulting legal instrument as though she had drafted it from whole cloth.

[40] Under Washington State law, it is a violation of the Consumer Protection Act (CPA) for a nonlawyer to engage, inter alia, in “[s]electing, drafting, or completing legal documents affecting the legal rights of another in an immigration matter. RCW 19.154.20(2)(g) (emphasis added).

[41] American Immigration Lawyers Association (AILA), Section on Anti-Notario Fraud, http://www.stopnotariofraud.org/ (last visited 09/16/2015). Our colleagues, Deborah Niedermeyer and Manny Rios recently received the top award from Washington State Bar Association for their pioneering civil lawsuit against a notario. 2015 WSBA Annual Awards Banquet, Sept. 17, http://www.wsba.org/News-and-Events/Awards (last visited Sep. 18, 2005).

[42] The authors of this article are currently litigating a Consumer Protection Act case against a notario who prepared a family-based adjustment application for a customer who was ineligible for the benefit. The act of completing the forms was per se a violation of Washington law. Why should we feel it is any less momentous for a lawyer to engage in such drafting?

[43] ABA Model Rule 1.2, cmt. [7].

[44] ABA Model Rule 1.7(b).

[45] Cf. ABA Model Rule 1(e) (defining informed consent).

[46] “Informed consent,” in this context, requires the attorney to explain that “the material advantages and disadvantages” of the proposed joint representation. ABA Model Rule 1, cmt. [6].

[47] Cf., Hake, supra note 21, Bruce A. Hake, Dual Representation in Immigration Practice: The Simple Solution Is the Wrong Solution, 5 Geo. Immigr. L.J. 581–639 (Fall 1991). But see, Cyrus Mehta, Finding The “Golden Mean'' In Dual Representation — Updated, 06-8 Immigr. Briefings (Aug. 2006) (arguing contra).

Redfin is cheaper and better than a real estate agent. Will you be the Redfin of legal?

Redfin is cheaper and better than a real estate agent.  Will you be the Redfin of legal?

This February my wife and I decided to sell our house, give away many of our possessions, move in with my mother, and spend more time traveling the world. That’s all well-trodden territory these days, except for the house-selling part. In lieu of a traditional agent, we sold through Seattle-based real estate startup Redfin. Not only did Redfin offer a superior client experience, we netted a substantially higher value through their lower fee model. Fellow lawyers, I submit there are some lessons to be learned from these folks.

Can law firms profit from limited license technicians?

Can law firms profit from limited license technicians?

Washington is the first state in the country to granted a limited law license to non-attorneys. Termed Limited License Legal Technicians (LLLTs), these professionals may operate their own firms or work along side lawyers. In this month's edition of the Washington Bar Association's magazine, I debate Jerry Moberg on whether there is a business case for law firms to hire LLLTs. The bottom line is that I think it's possible for firms to make this work, but it will be harder than many anticipate.

Leveraging technology - MSJDN materials

Leveraging technology - MSJDN materials

The day after returning from a month in India I was proud to talk to the Military Spouse JD Network about technology tools in law firm. Forrest Carlson, Bill Hayden and I spoke about tools for working remotely as an attorney.  At the request of our organizers, here are the materials from the presentation.

Working remotely - 4 top resources for lawyers

Working remotely - 4 top resources for lawyers

Later this morning I'm heading over to Seattle to talk to the folks at the Military Spouse J.D. Network about technology tools for working remotely. Pleased to be sharing the podium with co-presenters Bill Hayden and Forrest Carlson. Since email is a scourge upon the earth, I figured that I'd post presentation materials here rather than fill up attendees' inboxes.

India Pt. 5 - Greatest foodie travel hack ever

Forgive me, since this has nothing to do with anything that's helpful to anyone professionally. But it may change your life when you travel. It may be that the rest of the traveling world has known about this since time immemorial, but this was an epiphany for me: you can design your own menu at bad restaurants.

Allow me.

The problem. 

Cities and large towns tend to have plenty of restaurants that serve the local population and consequently serve food that is both (1) good and (2) what locals want to eat. Those are the two core qualities you're probably looking for as a traveler. The problem arises in small towns and villages where you might find yourself en route to some tourist destination. Right now, for example, I'm in Yuksom, Sikkim, which is the jumping off point for some great Himalayan treks. It's small enough that the population can't support an eatery catering to locals, so the only joints are selling to travelers.

That is a recipe for disaster.

What you end up with is the classic "backpacker's" menu, the definitive feature of which is the banana pancake. These black holes cater to the the least common denominator of the perceived Western and Israeli palate. Full of boring carbs and blandness, it's a foodie's worst nightmare. Example:

The solution.

Buy your own ingredients! Why this had never occurred to me I will never know. The other night we sat at the only local eatery, which featured one (bad) vegetable dish on the 6-page menu. I asked the owner if he had bindi (okra) - he did not. But I remembered seeing a vegetable stand down the street. Five minutes and $.87 later, I came back with a bag of veggies. With only the very basic perimeters of "no oil, no salt," we got back some lovely, spiced veggies.  For the hassle of cooking our bag of veggies we were billed $1.58.

The following night we took this to the 102-level and bought our veggies in advance so we could wash them ahead of time. (I wasn't sure how much TLC the staff would want to devote to the surprise prep).

You can see the sort of set up that this type of eatery has - here's a look at the main station's mise en place.

You're breaking the cook's flow by asking him to prep your veggies (or whatever), so expect to pay some sort of premium. But if you're at this sort of joint, that's probably not going to break your bank.

Here's a look at the results. I'm not saying this is James Beard territory. But if the other options are chow-main or faux pizza, this is high living indeed.

A related nuclear option is to take over the kitchen altogether. I've attempted this only once on this trip, after being served a grease-bomb of an omelette in a tiny tea hut. Since Jules is militantly opposed to grease, I politely asked the cook to step aside and just did the omelette myself. Wasn't a masterpiece, but it was an improvement. I'd recommend trying this only in pretty small or not busy spots. But I know view taking over the kitchen as a legitimate option to lousy food. 

Conclusion.

Never except the reality with which you're presented. If the restaurant doesn't have what you want, go buy if for them, pay them to cook it, or do it yourself.

India Pt. 4 - Communicating with clients

Kolata, as it turns out, really  knows rain and humidity. We swam out of the hotel lobby this morning into air with the viscosity of 

lassi

. Now we're taking refuge as the streets go Venice style.

Yesterday we returned from the sundarbans, the world's largest mangrove forest. Nearly five million people live on the Indian side alone (most of the territory is in Bangladesh), making ends meat with very difficult subsistence agriculture. Generally the only source of fresh water is man-made collection ponds, from which families draw drinking water and irrigate their rice paddies. Locals venture into the forest to harvest honey and approximately 45 lose their lives in tiger attacks each year. It is a beautiful and desperately tough place to live.

(Below, woman walks on the retaining dyke which prevents saltwater from flooding the village, and a trio sets up a net to capture fish at high tide.)

I won't even attempt to transition gracefully from the hardships of rural Bengal to the topic I want to cover today, which is working remotely with clients.

Just as our firm is built to allow remote collaboration within our team, it's fundamentally important to us that client work can be performed from anywhere. So here's a look at the systems we use to make that happen. By the way, these are all off-the shelf, easy options. Running a seamless virtual law firm doesn't take a maverick these days, and in fact it's a lot easier to get off the ground than your grandma's paper office was.

Clio.

The core of our firm is Clio, which I consider to be the leading law practice management (LPM) application available today. Full disclosure: I'm grateful to Clio for hosting me as a visiting "lawyer in residence" while living for a while in Vancouver, BC, but they don't pay me anything to promote their product - I just like it.

In short, Clio is a (mostly) all-in-one solution for the main functions of a law firm. For purposes of working remotely, there are basically three core elements to this. First, our cloud-based client files live on Clio in basically the same way they would traditionally in a paper file. That is, each client "matter" gives us all documents, notes and client communications related to a particular matter. Here's what it looks like:

In other words, the whole client file is basically right there at our fingertips to easily click to anything we need. How cool is that?

Second, Clio gives us a client-facing portal so that our clients can access their file and communicate with us. Using the portal, clients can upload documents (or any file) using a simple drag-and-drop utility. They can also use the portal to send secure messages to us. The portal has 256-bit SSL encryption, which is one heck of a lot safer than the old file cabinet. The client portal is really a critical feature set for us, since one of the principal reasons for us being on the cloud is to make it easier for clients to share information with us.

Probably my biggest pain point with Clio at the moment is that it doesn't include a forms feature, which we could use to gather information from our clients at intake and beyond. Its API allows integration of Intake 123, but that form-creating application doesn't meet all our needs either, and of course I also don't want to pay for a new application to deliver feature sets I wish were already included in Clio. A couple days ago I built an intake questionnaire on our website using the Wordpress plugin, Gravity Forms. So far that looks promising, and could be spliced together with Clio via a Zapier if I opt for a pricey developer license.

Finally, Clio allows us to manage billing and collect payments from clients. Hourly and flat-fee billing is easily integrated into client matters, and it takes only moments to generate a new bill. These may be shared with the client through the secure portal. We use LawPay for one of our credit card processors, which integrates with Clio. So when clients receive the bill they can simply scroll down and complete a credit card payment on the same screen. LawPay's rates are higher than other credit card processors, but they are one of only a couple processors that are able to process deposits to a client trust account. Also, their support is quite good.

In addition to simply meeting our needs from a feature perspective, what I really love about Clio is the excellent user experience. It looks great and operates intuitively from a user perspective, both for attorneys and for clients. That's absolutely paramount. If your clients are going to be interacting with your firm through an application, then their experience with the application is their experience with your firm. Almost all of my clients enjoy using Clio, which means extra kudos for their overall experience with the firm.

If you want to try Clio for free you can do so here.

Phone answering.

My firm doesn't have a receptionist and never, ever will. Until recently we used Ruby Receptionist, which was aptly described by Ernie the Attorney as being the Seal Team Six of call-answering. Like other answering services, you point your in-bound phone lines at Ruby, and they answer calls following whatever instructions you give. It's hard to put my finger on why Ruby is so good, but basically these guys - mostly gals - are like client service ninjas. As a representative example, a Ruby called me one day to transfer a client call and heard Bollywood music playing in the background. Later that week a half dozen Bollywood DVDs showed up at the firm with a hand-written note from the Ruby. You can call that a gimmick, but I'm telling you, these folks know how to make you feel cared for, and more importantly, make your clients feel cared for. This is the most professional possible experience for clients calling your firm.

But I said we used Ruby until recently - why the change? Because we transitioned our firm's brick-and-mortar presence from our stand-alone office to a Regus facility. Most folks are familiar with Regus, which is a world-wide operation selling nice office space and ancillary services. There's a Regus office 10 minutes from my hotel in Kolkata which I could be using at no additional cost if I wanted. For the marginal cost of only $100/month I tacked-on call answering service to our service plan, compared to the $500-$600 I had been paying for Ruby. Frankly the quality is no where close to Ruby. I'll often get the receptionist calling to say that "someone" is on the line for me, whereas a Ruby wouldn't bother me until she'd taken down the caller's full name, contact information and favorite color. I'm hoping that we can work on the quality, but meanwhile I certainly don't mind the cost savings.

Earth Class Mail.

This one is a relatively recent experiment for us. As hard as we try to be paperless, you just can't always get away from it. In immigration practice, for example, the federal agencies insist on sending most notifications by snail mail. As a paperless practice, this means someone has to open and scan all the notifications. When we started outsourcing our back-office work last year, that meant there was no non-attorney on site at the firm, and my poor associate ended up with mail duty. That sucked for him and for the firm, since there were better uses of his time.

Enter Earth Class Mail (ECM). These guys, with locations all across the U.S., basically allow you to outsource your mail room. For roughly $125/month we get a mailing address in Seattle to which all of our snail mail gets sent. When it arrives, it automatically gets scanned and uploaded to this mailbox for my (or whomever's) review:

 The scanning can be done in black-and-white or color, and of course is done with OCR, rendering .pdfs with recognized text, rather than a flattened image, so you can cut/paste and search the document.

So far so good with ECM. As a very important note, however, understand that this is not a solution for gaming Google. With ECM you can buy either a post office box or an address that looks like a street address with suite number. Back in the wild west days of SEO, folks could fool Google Local into thinking that such an address was an office location, which did great things for your search ranking. ECM still seems to play into that misconception with some of its marketing material. Misconception because Google has cracked down on this game and won't rank such an address on Local. Incidentally, this is also a problem with Regus, since Google will not list an address from a shared office facility on Local. Frankly, that's a major, major drawback of using Regus.

Skype.

Hardly creative, but this is our go-to solution for video conferencing with clients. It's basically a network effect issue, which is to say that a video conferencing application helps us only if our clients use it. Doesn't do a us a lick of good if we have a killer conferencing application that our clients don't use. Skype is ubiquitous, and in fact many of our international clients already use it on a daily basis. Plus, it works great and has all the features we care about, including 3-way calls on my premium account. 2-way video calling, of course, is totally free on Skype.

Google Voice.

When I first opened the law firm we used a free Google Voice account as our primary office number. This virtual line can be forwarded to ring on any number of designated devices. So, for example, when we started using Ruby, the Voice number would ring to Ruby, who would then forward the call to me. Voice isn't a feasible solution for anyone other than a true solo, in my opinion. It's basically impossible to forward calls (Ruby forwarded on its own lines) and calls got sporadically sent to voicemail accidentally.

But a great thing about Voice is using it for SMS text messages. Users can text to the Voice number, which can be viewed in the Google Voice page or in your Gmail inbox. We found that many of our younger clients were more comfortable texting than calling us, and this made it easy. A caution, however, is that texting etiquette typically calls for quick turn-around, so you do need to set some expectations about how text messages will be responded to.

Nextiva.

After finding that Voice wasn't meeting the phone needs of the growing firm, we upgraded to Nextiva's Voice Over Internet Protocol (VOIP) service. (We still keep the Voice number, primarily for purposes of SMS texting). For those who haven't looked into it, VOIP basically offers you something that functions just like a traditional phone line but operates via your internet connection. The quality just as good as a traditional LAN line, and we've never had an issue with dropped calls. A great think about Nextiva, and VOIP lines generally, is that they're so highly portable. So, in theory, if I want to work from a particular office, I can just plug in my phone there and suddenly have my office line in that location.

But devil is in the details. Sadly, Nextiva doesn't play nice with Regus's network setup (or vice versa). So I was frustrated to learn that our Nextiva phone lines simply won't work at our new office location. Our hacked solution is to forward the Nextiva lines to Regus's system, so we may end up just ditching Nextiva since Regus will provide us with a number at no additional cost. (I'm hanging onto the Nextiva number for now in case our love affair with Regus doesn't last).

I include Nextiva in the list of virtual tools, even though the jury is somewhat out on how we'll be handling voice-calls on an ongoing basis.

(Above, artisan prepares statutes for durga puga, the most celebration on Kolkata's Hindu calendar, which involves launching statues of the goddess into the river).

That's basically it for our core client communications systems. With the tools above I can work on any of our client files anywhere in the world with an internet connection. If others have recommended alternatives to our choices I'd be very interested.

And now, gratuitous food porn. In order of appearance, mutton biryanipuri with channa, and luchi with Bengali veggies and fish (made by yours truly with a lot of help).

India Pt. 3 - Communicating with the team

This week Jules and I are holing up in the storied and fascinating city of Kolkata. The ex-seat of the British raj, this steamy metropolis with its crumbling colonialism channels Myanmar's Yangoon more so than it's larger Indian sister city, New Delhi. Bracing for what we (correctly) figured would be a pretty intense urban experience, we went further up-market with our accommodation than normal, having learned the value of an oasis when traveling in urban India. We wound up at the astoundingly nice, and recently restored,

Lalit hotel

. Though by no means a budget  room, at the cost of a Holiday Inn in the U.S., let's just say your dollar goes much, much, much further in these parts. Compare this ("free") breakfast with the pre-packaged wasteland of an $80 motel.

(Yes, breakfast does come with malaria tablets).

After getting hopped up on three cups of chai, how does one collaborate with a law firm squarely on the other side of the globe? Here's a look at some of the tools we use every day at the firm, whether I'm one zip code or many time zones away.

First, a word about who the team is. The core of our law firm is just two attorneys, myself and the extraordinarily capable and amiable Gustavo Cueva. Gustavo has primarily responsibility for much client contact, and the sort of legal research and analysis tasks traditionally done by an associate. The vast majority of routine, commodity legal drafting is done by a large team of contract attorneys that operate independently from the firm. Delegation is made to those attorneys on a task-wise basis. In a typical case, after Gustavo has collaborated with clients to secure all the required information and documents we need for an immigration process, the contract team with be tasked with drafted and quality-review testing the appropriate legal forms, which are then modified and reviewed by Gustavo or I. That whole process is a discussion by itself, but I mention it just to give context for the communications that are going on within the firm.

So here's how we roll from a communications perspective.

Email.

We don't use it. Okay, that's a fantasy, but we move closer to the reality every day. Email is the scourge of professional life. We waste a quarter of our time farting around in our inboxes and there's no correlation between inbox time and actual productivity.

For team-communication purposes, there are two main problems with email. First, email is a terrible way to organize information relating to client matters. The painfully classic example of this is attorneys printing out email threads to put into a paper file. But even paperless folks have to find a hack (here's ours) to file emails with the relevant client file. Even if you do this well, it's still devilishly hard to put follow conversation threads and backtrack to figure out what's transpired in a case.

The second issue is the pure volume of emails. Most professionals get 100 or (many) more emails per day. Email puts critical communications on the same importance level as newsletters, Netflix renewal notices, and "professionals" who are "reaching out to you" (a creepy phrase). Our Golden Rule at the firm is that email is the communication medium of last resort.

Trello.

If I'm such a kill joy on email, what do we use instead? Thanks for asking. The answer involves much more than just a communication tool, and goes to a core commitment to how we manage the firm. That's the use of a set of project management practices developed in the technology sector, which are referred to as Agile. (Disclaimer for legit Agile gurus: I in no way claim to be one, I'm just one attorney trying to bring some sanity to projects at our our firm).

Attorneys are project managers whether we embrace that title or not. Whether you're litigating or doing transactional work, you're almost certainly working on a complex, multi-stage process with lots of known and unknown variables. Lawyers may be relieved to know that there are entire disciplines devoted to the science of project management, with over a century of knowledge ripe for poaching. Born largely out of project management in tech fields, Agile is a primo example of these goodies.

A discussion of Agile is way beyond the scope of this post. (Absolutely the guy to guy to follow on this issue is friend John Grant over at Agile Attorney). For my purposes, though, a core idea is to know at all times what's keeping a case from moving forward. At the firm, we think about cases as being in a production line, not because we view our clients as widgets, but because they hired us to get something done for them. They don't give a darn if we open a file - or worse, "paper it over" - for them; they just want us to accomplish the goal that brought them in our door.

From this need to know what's going on at all times was born one of the hallmark features of Agile management - the kanban board. This visual tool gives us a consolidated dashboard where we can collaboratively view every single client case and understand where in the "production" cycle the matter is. Here's basically what it looks like:

Kanban boards are traditionally done using sticky notes on a wall - if you've seen any movie about startups you've probably seen one. But since we have a decentralized work environment, we use a tool called Trellofor a cloud-based kanban board. That's what your're looking at above. At a glace, we can tell which lane a particular client matter is in. In the Williams matter, are we waiting on documents from a client before we can proceed? Are we waiting on our contractors to do a first draft of documents? Or does Gustavo need to do a final review of work product?

On the level of a particular client matter, all activity is documented within a client "card." Clicking into the card, you can see (above) that there's a master to-do list of high-level stages of the case progression. An activity feed below captures everything going on in the case - we basically use this as a catch-all case documentation as you might see in the notes section of a traditional paper client file. Finally - and very important - we can communicate to other team members within a Trello card. So instead of emailing Gustavo that I need him to ping Mr. Williams about a missing document, I flag Gustavo in the card and make the note. This goes a long way towards keeping all case-related chatter in one spot, so we can easily audit what we've been doing on a file.

If you're looking into using Agile in your practice, consider LeanKit as an alternative to Trello. LeanKit has a much more robust feature set, which isn't necessarily a good thing if you're just trying to get off the ground with a kanban board. A critical improvement, though, is that it allows a board-within-a-board,  so to speak: within a particular card you can create a second, simpler board with task cards. So using LeanKit, you could have a master client board, as shown above, and then track advancement of individual client tasks within the card, using the same sort of card system. Another very exciting tool to Agile lawyering is Lawcus, which will be the first LPM system built entirely around Agile. Built by neat guy, Harry Singh, Lawcus is doing a private beta right now, but you can probably get a try-out if you ping Harry.

Trello (or LeanKit) is by no means an all-in-one law practice management (LPM) system, and doesn't pretend to be. We very happily use Clio as our cloud-based LPM system - more on that in the next post about communicating with clients. Obviously we want to be sure that all our activity on Trello finds its way into a client's master file in our LPM system. Luckily, Clio has a great application program interface (API), meaning its developers make it easy for Clio to play nicely with other applications. We use a third-party solution called Zapier, which is basically a tool for helping various web applications work together. Using a "Zap" that we created, any new activity on a client's Trello card it is automatically registered as a case activity in the notes section of the client's Clio matter. In reality, we almost never reference the notes section of Clio to review the case activity, but if Trello ever died on us we'd have all the activity safely archived in Clio.

Bottom line: from a productivity and collaboration standpoint, Trello is absolutely at the core of our daily work life.

Google hangouts.

When we're in the same time-zone this is a tool we use frequently. We use the chat function for the sort of quick questions that might traditionally cause an associate to tap on the partner's door. I try to avoid much of this though, since even small interruptions can take a very heavy toll on productivity - we really overestimate how good we are are multi-tasking. If a chat is more than a couple back-and-forths then it probably merits a focused conversation via phone or video chat.

Speaking of video chat, we often use that for our very short daily standups where we review the day's battle plan. We'll also use it later in the day if there's a particularly thorny issue needing discussion; I find the face-to-face quality of video really helps versus phone.

With a 12-hour time difference there really isn't much need for contemporaneous communication while I'm working from abroad, though we have used the chat function a few time.

Let's get cooking.

Hope that's a helpful overview of our team collaboration tools. Coming up next, working collaboratively with clients on the cloud.

After morning computer time, I'm off to learn some Bengali cooking.  The cuisine utterly mind-blowing, featuring lots of light, subtle flavors like banana leaf-wrapped river fish with a mild yellow mustard sauce. The green blob in the picture below was tiny shrimp in a sinus-clearing horse-radish like mustard stew with taro leaves. Like nothing I'd ever had in the best possible way.