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April 19, 2006

Unauthorized Practice of Law in Immigration Cases

Unauthorized Practice of Law in Immigration Cases

The Indiana Supreme Court has original and exclusive jurisdiction over matters involving the unauthorized practice of law. In State ex rel Indiana State Bar v. Diaz, 838 N.E.2d 433 (Ind. 2005), the court determined whether a non-lawyer (“Ms. Diaz”) should be enjoined from providing immigration services such as selecting immigration forms, advising individuals on immigration or other legal matters, using the title “Notario” or “Notario Publico,” and advertising and promoting immigration services without disclosing the non-attorney status. Reasoning that giving legal advice was the core element of practicing law, the court held that Ms. Diaz had engaged in its unauthorized practice.

The court distinguished Diaz from real estate brokerage practices. It noted the general rule that the practice of law does not include filling in blanks on a legal document, prepared by an attorney. This requires merely common knowledge regarding the information to be placed on the instrument and general knowledge regarding the legal consequences of using those documents. However, “when the filling in of such blanks involves considerations of significant legal refinement, or the legal consequences of the act are of great significance to the parties involved,” then the forms must be completed by attorneys. Id. at 444.

The court concluded that Ms. Diaz had engaged in the practice of law by “advis[ing] clients on many aspects of immigration law, [writing] letters, motions, and appeals to immigration officials on behalf of clients, and accompany[ing] clients to the immigration offices.” Id. at 445. Further, she had prepared legal instruments such as contracts and pleadings. The court noted Ms. Diaz’s clients’ suffering which occurred as a result of her incomplete knowledge of the law and faulty advice. “This is especially true in immigration cases, where the consequences of incompetent representation may be the lost opportunity for permanent residence, deportation, and perhaps even death for unsuccessful asylum seekers.” Id. at 433. The court noted the further detriment of non-lawyer representation in the absence of an attorney-client privilege. Because of these violations and the risk that befalls those represented by non-lawyers in this context, the court issued an injunction to prevent Ms. Diaz from continuing to deliver immigration services.

Full Faith and Credit of Foreign Judgments

Foreign judgments are entitled to full faith and credit in Indiana courts. This means that the foreign judgment of a court, with proper subject matter and personal jurisdiction, should be given the same credibility and effect in Indiana as it was entitled to receive in the issuing state. Ind. Code § 34-39-4-3. When examining the foreign court’s assertion of jurisdiction, the Indiana court must apply the law of the state issuing the judgment

In Gardner v. Pierce, 838 N.E.2d 546 (Ind.Ct.App. 2005), an ex-wife filed a complaint to vacate a prior Indiana judgment that modified child custody and terminated the husband’s child support obligation. The original custody decree was entered in Illinois when the couple divorced. About twenty years after the Indiana modification, the ex-wife filed a petition in Texas to enforce the Illinois decree. The husband challenged the action on grounds of statute of limitations and res judicata. He also filed a counter-petition to enforce the Indiana judgment. The ex-wife claimed that the Indiana judgment was procured by fraud. Following a hearing, the Texas court agreed with the husband and held that the Indiana order was valid. The ex-wife did not appeal this decision. Later, the ex-wife challenged the Indiana order in Indiana. The court found that the Texas court had jurisdiction, because the ex-wife had affirmatively requested that the Indiana judgment be vacated on grounds of fraud, and was entitled to full faith and credit.

Offers of Judgment and Recovery of Litigation Costs

A party may offer to allow a judgment to be taken against it for money or property or to the effect specified in his offer, with costs then accrued. Trial Rule 68 provides that if the offer is not accepted within ten days after service of the offer, it will be deemed withdrawn. Thereafter, if the judgment obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the date of the offer. Although Trial Rule 68 is intended to encourage prompt case resolution, by punishing a party who refuses to accept a fair judgment, its application in Indiana is limited. This limitation was underscored in Helmuth v. Distance Learning Systems, 837 N.E.2d 1085 (Ind.Ct.App. 2005), where a plaintiff rejected a settlement offer. In describing the very limited scope of Trial Rule 68, the court noted that “costs” has the same meaning as in Trial Rule 54(D) and are generally limited to attorney and statutory witness fees. For a discussion of costs, see 22 Arthur, Indiana Practice § 38.05 (West 1996).

An alternative to an offer of judgment, allowed in tort actions commenced under Titles 33 and 34 of the Indiana Code, is the qualified offer of settlement. Ind. Code §§ 34-6-2-18 and 34-50-1 et seq. The settlement offer must be written and offered to resolve all claims and defenses at issue in the civil action. If the offer is not accepted and the final judgment is less favorable to the recipient than the terms of the offer, the court shall award attorney’s fees, costs and expenses incurred by the offeror after the date of the qualified settlement offer. The award of attorney’s fees, costs, and expenses may not total more than $1,000, and the attorney’s billable rate is limited to $100 per hour.

No Duty to Attach Insurance Policy in Subrogation Action Based on Tort

Trial Rule 9.2(A) provides that when a pleading is founded on a written instrument, the original or a copy of that instrument must be included in or filed with the pleading. Failure to attach the pleading may subject the action to dismissal. In Lutz v. Erie Ins. Exchange, 838 N.E.2d 1181 (Ind.Ct.App. 2005), an insurer (“Erie”) paid an automobile damage claim to its insured before commencing a subrogation action to recover that amount on a theory of negligence. The Indiana Court of Appeals found that because the action was based on negligence and did not arise out of the insurance policy, Trial Rule 9.2(A) did not obligate Erie to attach an insurance policy as a predicate for maintaining the subrogation action.
Prescriptive Easements

Prescriptive easements are not favored by the law. In order to establish such an easement, there must be proof of actual, hostile, open, notorious, continuous, and uninterrupted adverse use for twenty years under a claim of right. The elements of adverse possession – control, intent, notice, and duration –are required in establishing a prescriptive easement. In Wilfong v. Cessna Corp., 838 N.E.2d 403 (Ind. 2005), Wilfong purchased a landlocked parcel of real estate. A private roadway ran through three other parcels connected Wilfong’s land to a public road. Cessna Corp. who owned two of three of the parcels refused to grant Wilfong permission to travel the private road, effectively denying him access to the public roadway. Wilfong filed an action claiming a prescriptive easement on grounds that the use by him and predecessors-in-title (the “Inmans”) to the Wolfong property had been hostile and without a claim of right. However, Wilfong could not meet the requisite years of hostile use if he could not establish an adverse use by the Inmans. Because the Inmans had used the private road with permission of Cessna and a sufficiently close personal relationship existed between the two, the Inmans’ use of the road was permissive and not adverse. The Indiana Supreme Court found sufficient evidence in the record and affirmed the trial court’s judgment.


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