Practicing Law without License to Be Here

The California Supreme Court issued a decision last week authorizing one Sergio Garcia, an alien residing illegally in the United States, to receive his law license and become a member of the California State Bar.

The case is replete with ironies, and with no few of what might be termed illogical syllogisms.

For instance, an attorney admitted to the bar, in order to actually practice law, must seek to be admitted to the various state or federal courts as well. When a court admits such an attorney to practice before it, he becomes an officer of the court. The online Legal Dictionary tells us that, "[a]s officers of the court lawyers have an absolute ethical duty to tell judges the truth, including avoiding dishonesty or evasion..."

It is difficult to imagine that an alien who has lived in the United States for as many years as Mr. Garcia apparently has, has never in the past lied about his name or provided false identification numbers – or will never in the future have to engage in verbal shifts, evasions, half-truths or outright lies about his status in order to remain.

What is more, every day of his life in the United States, Mr. Garcia breaks the law by remaining here. Under these circumstances, how can a court possibly invest confidence in his capability to perform his obligations as an officer of the court?

Nor is the phrase simply window-dressing. Many states, including California, have long histories of legal citations outlining cases in which attorneys have been disbarred or disciplined for infractions of this affirmative obligation. (See for instance, an October 2006 article in the Los Angeles County Bar Association (LACBA) journal entitled "Advocacy Has Its Limits" by David L. Brandon, a member of the LACBA Professional Responsibility and Ethics Committee when the article was written.)

Another irony of the case is that the Obama administration filed a brief opposing Mr. Garcia's admission to the bar, even though his profile is similar to those eligible for the constitutionally dubious DACA program enacted by ... the Obama administration! (He wouldn't have qualified for DACA since he's currently 36 and had to be under 31 as of June 2012 to be eligible.) They should hardly have been surprised by Garcia's bold decision to go forward, in that they have provided the veneer, the merest fig leaf of legitimacy to his presence through their persistence in administratively enacting a number of policies designed to defeat the immigration system set into law by Congress. This is a classic example of the rule of unintended consequences.

No one in the administration should have been surprised – if indeed they were. It is instructive that the reaction of California State Attorney General Kamala Harris, according to the online article in Visato cited above, was to say "California's success has hinged on the hard work and self-sufficiency of immigrants like Sergio." This hardly sounds like Ms. Harris objected to the Court's decision, even though she is an avowed friend and ally of ... President Obama. In fact, readers may remember that, not so long ago when it appeared U.S. Attorney General Eric Holder might step down, the administration floated Ms. Harris's name as a potential replacement.

I am amused that one of the California Justices, Ming Chin, declined to join in the majority opinion and issued a concurrence instead, apparently because the majority opinion used the phrase "undocumented immigrant" in referring to Garcia, preferring instead a phrase he had used in a previous opinion written for the court: "unauthorized alien".

This has an unworldly "how many angels dance on the head of a pin" feel to it. Why quibble when either phrase is a euphemism, a work-around for the more direct phrase "illegal alien"? Potatoes, potahtoes, Mr. Justice, and small ones at that.

So, let us see how long it takes for the other shoe to drop, for surely it will, and it takes no Sybil, no prognosticator of any sharpness at all to predict that Mr. Garcia is almost certain to apply to appear before the Executive Office for Immigration Review – the immigration courts – to practice law.

I look forward to that through-the-looking glass event with the same amused disdain that I felt when reading about this decision. As the Festrunk brothers, those two wild and crazy guys of Saturday Night Live fame used to say, "What a country!"

[This posting was edited after publication to note that Garcia is not eligible for DACA.]