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Greg Siskind on Immigration Law and Policy

Lawyer Suspended for Month for "Illegal Alien" Comment

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An Indiana divorce lawyer has lost his license for a month due to comments he made about the immigration status of his client's wife. According to the ABA Journal:

An Indiana lawyer has been suspended for 30 days for a comment about the immigration status of his divorce client’s spouse in a letter sent to opposing counsel and the judge in the case.

The lawyer, Joseph B. Barker, wrote the letter in 2009 to protest his client’s lack of access to his child, according to the Indiana Supreme Court's Sept. 6 opinion (PDF), noted by the Legal Profession Blog.

Barker’s client “told me this week that he has only seen his baby … one day all year,” Barker wrote. “Your client doesn't understand what laws and court orders mean I guess. Probably because she's an illegal alien to begin with. I want you to repeat to her in whatever language she understands that we'll be demanding she be put in JAIL for contempt of court. I'm filing a copy of this letter with the court to document the seriousness of this problem.”

The Indiana Supreme Court said Barker’s letter violated ethics rules regarding conduct showing bias or prejudice, and conduct with no substantial purpose other than to embarrass, burden or delay a third person.

I have mixed feelings on this one. I've commented many times before that I think calling someone an illegal alien is a derogatory term and I think the lawyer's conduct here was certainly uncivil. And there are cases where threatening to reveal one's immigration status have been found to be akin to extortion (though I don't think that was what was happening here). But I probably would have recommended a reprimand as opposed to something as harsh as taking away someone's livelihood for a month.

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Updated 09-20-2013 at 06:39 AM by GSiskind

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  1. Jack2's Avatar
    It does not appear to be about the term "illegal alien." The Court wrote, "we conclude that accusing Mother of being in the country illegally is not legitimate advocacy concerning the legal matter at issue and served no substantial purpose other than to embarrass or burden Mother." By this standard, it would follow that any accusation or reference to any act of illegality, true or not, which does not concern the family law matter would warrant the same punishment. E.g., if he had accused the wife of not filing a tax return or committing tax fraud would that have resulted in the same punishment? The reason stated by the court is especially odd considering that immigration status of a parent is actually more relevant than most illegal acts where custody is at issue. E.g., because unlawful presence is ongoing and affects the ability of a person to make a living, the stability of the household given that the parent is deportable, etc. I think the punished attorney pushed the envelope more with the "whatever language she understands" line in terms of bias or prejudice based on national origin. The decision would appear more legitimate if that were the basis of the punishment. At some point the attorney should have been offered a deal to apologize and avoiding the harsh punishment. The "no insight into his misconduct" line hints at a PC motivation by the court as if he is being punished more for being unenlightened or uncouth and that immigration status is being given special sensitivity even though it is not a listed factor in Rule 8.4(g).
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