Mr. and Mrs. Chong were immigrants to the United States from an East Asian country. They needed legal status in the United States. They sought an immigration attorney and were directed to a firm that advertised that they were “specializing” in immigration. They were introduced to the firm by a “paralegal.”The attorney filed for a labor certification in order to qualify the clients for permanent residence in the United States under Section 245 (i). Immigration statutes are clear; in order to qualify under Immigration and Naturalization Act, Section 245 (i), the labor certification had to be filed prior to April 30, 2001. In this case, the labor certification was filed much later. The malpractice matter was derived from this fact. Nevertheless, the attorney kept requesting documents, monies, and signatures on immigration forms. This went on from 2004 to 2010, a period of six years of deception by the attorney. When the Chongs received a deportation notice, they sought new counsel who discovered the Massachusetts attorney malpractice.In this case we served the negligent attorney with a legal malpractice 93A letter. Unfortunately, the attorney responded with nothing more than a return of the legal fees. Wherefore, on behalf of our clients, we filed suit in 2011, Suffolk Superior Court Civil Action Number 2011-00692. We alleged violation of the Massachusetts Rules of Professional Conduct, 1.5(e) which does not permit feet splitting with non-lawyers because the file indicated there was fee splitting with the paralegal. Moreover, we alleged negligence in maintaining an immigration case, over years, which had no chance of winning because the Chongs were never eligible for “adjustment of status” in the United States. In the opinion of our expert, Immigration Attorney Joshua Goldstein, there was zero chance of success in immigration court. All of the legal work, and all of the fees and legal bills by the negligent attorney, were misleading.

Discovery in this case was difficult. We secured the file from the negligent attorney, and we were able to complete a first round of paper discovery – written interrogatories and admissions. However, we were not able to secure the attorney’s deposition. This is because each and every time we scheduled it, the negligent immigration attorney had to cancel. Fortunately, this facilitated settlement negotiations and the case settled in early 2012.

While legal malpractice insurance does not generally cover 93A damages, in our opinion, it factors into the settlement discussion at some level. For example, if an attorney was negligent and that negligence causes the client damages, but s/he immediately informs the client, it is less likely that a Court will award damages under 93A which requires that the attorney’s behavior be unfair and deceptive. However, if the attorney files a claim that has “zero” chance of winning, and misleads the clients, year after year, as in this case, it is likely that a Court will find this to be unfair and deceptive. Under Massachusetts General Laws, Chapter 93A, if there is such a finding, the Court must double, and may treble (triple) the damages, and shall award attorney fees.

In legal malpractice cases that settle, there is usually a “confidentially” clause in the settlement agreement. Wherefore, our clients cannot give the name of the negligent attorney or the amount settled for.

We have used Massachusetts Immigration Attorney Josh Goldstein as our expert for immigration malpractice cases in Massachusetts. He provides a thorough review of the immigration file, laser focuses on the negligence of the offending attorney, and provides excellent expert opinions.

I have been representing victims of legal malpractice since 1985. If you have an immigration malpractice case, call us at 617-227-7423 for a free consultation and free file review.