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Jason Dzubow on Political Asylum

When Lawyers Lie

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The case of Detroit-area immigration lawyer David Wenger has been in the news lately. Mr. Wenger was recently sentenced to 18 months in prison for counseling his client to lie to the Immigration Court.

Mr. Wenger's client is a 45-year-old Albanian citizen who has lived in the U.S. since he was six months old. The client's family, including his daughter, live in the United States as well. Apparently, the client landed in removal proceedings due to a 2013 controlled-substance conviction, but the source of Mr. Wenger's troubles stem from the client's decades-old conviction for criminal sexual misconduct.


It seems that Mr. Wenger feared that if the Immigration Judge became aware of the sexual misconduct conviction, the client would have been deported. Having witnessed the tragedy of deportation many times, and particularly the pain it causes to the children of the deported, Mr. Wenger took matters into his own hands and tried to cover up the old conviction. It didn't work.


Now, Mr. Wenger is going to jail and the client--while still in the United States--faces an uncertain future.


Mr. Wenger's tale has caused some buzz among my fellow immigration lawyers. Mostly, it is described as "sad," and certainly there is an undercurrent of sympathy for a man whose advocacy crossed a line that we, as lawyers, are trained to approach. I've known criminal defense lawyers, for example, who say that if you don't go to jail for contempt once in a while, you're not doing your job. And certainly there is an element of truth to this: When you are advocating for an individual against The Man, you have to use all the tools at your disposal and push the limits of the law to protect your client. That is our job--and our duty--as lawyers. But such zealous advocacy has inherent risks, as Mr. Wenger's story reminds us.


So I suppose I understand Mr. Wenger's motivation to lie. But I do not understand how he thought he might get away with it in this particular case. The U.S. government keeps records of criminal convictions, and the DHS attorney in the case would likely have known about the old conviction. So even if you are not morally opposed to lying, I don't see the point of lying about something that the government knows already.


The temptations faced by Mr. Wenger are amplified in my practice area--asylum--where the U.S. government rarely has independent evidence about the problems faced by asylum seekers overseas, and significant portions of most such cases depend on the client's own testimony. I've encountered this myself a few times when clients have asked me to help them lie ("Would my case be stronger if I said X?"). How to handle such a request?


The easy answer, I suppose, is to tell the client to take a hike. That is not my approach. I am sympathetic to people fleeing persecution who do not understand the asylum system, and who think that lying is the only way to find safety (and who often come from places where lying to the government is necessary for survival). In many cases, such people need to be educated about the U.S. asylum system. When a client asks me to lie, I explain that as an attorney, I cannot misrepresent the truth. I also explain why lying will likely not help achieve the client's goal, and how we can present the actual case in a way that will succeed. Hopefully this is enough to convince the client to tell the truth.


For individual clients, of course, this type of honesty sometimes has its drawbacks: Cases may be lost, people may be deported--possibly to their deaths, and families will be separated. Some lawyers find this price too high. If you believe your client will be deported to his death and you can save him by lying, perhaps the lie is justified. Mr. Wegner, no doubt, felt that he was doing the right thing for his Albanian client (though a review of Mr. Wegner's disciplinary record reveals that he has not always served the best interests of his clients). And there are certainly attorneys who believe that the ends justify the means. But I am not one of them.


When all is said and done, I will not lie for a client. I don't think it is effective, and even if we get away with it in one case, I fear that it would hurt my credibility as a lawyer--and thus my ability to be an effective advocate--in all my other cases. I also feel that it damages the system, which hurts honest applicants.


In the final analysis, even if we ignore his other disciplinary issues, it is difficult for me to feel too sorry for Mr. Wegner. While a lawyer's zealous representation of his client is admirable, the willingness to cheat corrodes our immigration system and ultimately harms the very people that lawyers like Mr. Wegner purport to help. For me, even the argument that lying is a necessary form of civil disobedience in an unjust system falls flat. Civil disobedience is about sitting at the lunch counter; not stealing the food.


Despite all the imperfections of the immigration system, our primary job as lawyers is to work within that system to assist our clients. We also have a role to play in criticizing and improving the system. But when lawyers lie, we fail as both advocates and as reformers.

Originally posted on the Asylumist: www.Asylumist.com.

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