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Court Denies Summary Judgment Motions in Immigration Malpractice Case

Koch v. PECHOTA, Dist. Court, SD New York 2013 – Google Scholar.

This is an immigration malpractice case where the lawyers were hired to represent a woman to help her obtain a green card. They apparently succeeded in that effort. Later, the plaintiff was deported. She sued the lawyers for legal malpractice, arguing that they failed to prevent the deportation.

The defendant lawyers argued that the representation ended when the green card was issued. Therefore, under their logic, they did not commit legal malpractice by failing to prevent the deportation of the plaintiff.

The lawyers’ motion for summary judgment was denied because they were unable to negate the factual dispute as to when the attorney-client relationship ended.

In a remarkable ruling, the district court excused the plaintiff’s failure to obtain an expert and allowed the plaintiff to proceed to trial. This is an unusual holding. The court explains:

“Similarly, the lack of expert testimony establishing the proximate causation element of Plaintiff’s legal malpractice claims is not fatal. Defendants assert that a claim of legal malpractice requires expert testimony regarding proximate causation to establish a viable cause of action, but cite no case establishing this requirement nor does such a requirement exist.As has been established, a factual dispute remains as to the duration and extent of Defendants’ representation of Ms. Koch. If Ms. Koch is correct that Defendants continued representing Plaintiff after the green card was issued and did not work to remove the restrictions on the green card, resulting in Ms. Koch’s ultimate deportation, it is a reasonable inference that Plaintiff suffered economic loss associated with her divorce as a result of Defendants’ failure to ensure Ms. Koch’s ability to return to the U.S. and attend the court proceedings. Accordingly, the proximate causation element of Plaintiff’s legal malpractice claims remains a factual dispute and summary judgment is inappropriate.”

Comment: immigration malpractice cases are becoming more common. Here, the lawyers may have failed to adequately communicate the end of the attorney-client relationship to the client. (Because this case has not gone to trial, the facts are uncertain at this stage.). The most fascinating part of the opinion deals with the plaintiff’s lack of an expert. Some courts have been less forgiving for the plaintiff’s failure to obtain an expert. Typically, the plaintiff in a legal malpractice case must obtain an expert to meet her burden of proof.

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