So last week, the case of undocumented lawyer-in-waiting Sergio Garcia was finally argued before the California Supreme Court. The question asked was whether it is legal for an illegal immigrant to be a lawyer in California.
The answer to that question, however, has taken so long that memories need refreshing.
The 36-year old Garcia was illegally brought to the U.S. from Mexico by his parents when he was 17-months old. From all accounts, he’s led an exemplary life. He successfully pursued a higher education, which culminated with graduation from law school and successful passage of the California Bar Exam.
“I’m very deportable.”
Outwardly, Garcia appears confident. He believes he’ll eventually get his license to practice in California. And with the ongoing angst on both sides over illegal immigration, his case has also received a good deal of media attention.
Indeed, the wanna-be lawyer spends a lot of time working the press and engaging in public speaking, including motivational talks about hope, dreams and persistence. All told, he comes across as a likable fellow, even quipping last Thursday to a reporter, “I’m very deportable. And if I don’t shut up, I might be sooner or later.”
I have posted many times on the topic of whether or not undocumented law graduates like Sergio Garcia, Cesar Vargas and Jose Godinez-Samperio can be licensed to practice in their respective state jurisdictions. Indeed, a year ago April, I posted six reasons why undocumented law school grads should be admitted to the bar. And also see “The other “Sergio Garcia” wants to be a California lawyer even without legal U.S. residency.”
And as I posted in August 2012 at “If you can’t practice law — sell tamales,” no matter Eric Holder’s Justice Department and the doom-gloom pundits, I still like the primary argument raised by California Attorney General Kamala Harris in support of Garcia. She argues that 8 U.S.C., 1621(c) is inapplicable because attorney licensing isn’t provided by a state agency but by the plenary power of the California Supreme Court. “Section 1621 does not apply because, although admission to the Bar is surely a professional license, neither of the two statutory qualifications are met. The license to practice law is not provided by ‘an agency of the state,’ but by this Court. Nor is the license provided by ‘appropriated funds of the state;’ instead it is funded by fees paid by its members directly to the State Bar, which is never appropriated by the Legislature.”
California needs one more lawyer?
So as Garcia’s case slowly wends its way — well past the attention span of a five-year old or of anyone else with a smidgen of interest, you do have to wonder whether or not it matters that the State Bar of California admits one more lawyer to the 179,158 already active on its membership rolls.
There are already over a quarter-million law-credentialed types in the Golden State. So what’s one more? That said, and as though there was a short supply of them, Garcia does say he wants to be a personal injury lawyer!
Still, I was caught off guard when I belatedly found out the oral argument In re Sergio C. Garcia on Admission finally took place last Wednesday and is now available online.
Joe Patrice at Above the Law posted a decent analysis of the oral arguments, which in the main, made much of the U.S. Department of Justice and its amicus brief opposing Garcia’s admission.
And while the Court spent a lot of time on 8 USC § 1621 and the Justice Department’s opposition, the statute is hardly dispositive to resolve the matter.
Much was also made on whether or not the Personal Responsibility and Work Opportunity Act applies. The Act says state agencies can’t extend so-called public benefits including professional licenses to undocumented aliens. But it’s an open question whether or not the state supreme court is even a state agency.
And besides, it’s well-settled that state courts issue law licenses. It’s a right courts jealously protect. “In the United States, the courts have historically regulated admission to the practice of law before them, and exercised the authority to discipline and ultimately to disbar lawyers whose conduct departed from prescribed standards” wrote Chief Justice Rehnquist in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991).
And it was in Theard v. United States, 354 U.S. 278 (1957), where Justice Frankfurter wrote, “The court’s control over a lawyer’s professional life derives from his relation to the responsibilities of a court. The matter was compendiously put by Mr. Justice Cardozo, while Chief Judge of the New York Court of Appeals. ” `Membership in the bar is a privilege burdened with conditions’ (Matter of Rouss, [221 N. Y. 81, 84, 116 N. E. 782, 783]).”
But despite a compelling interest in protecting its sanctified dominion over lawyer regulation, will the California Supremes opt instead to make this a political, i.e., a legislative question? Will the state high court expediently kick the ball instead of the proverbial can down the road to the state legislature or to Congress? Or will the Court render a judicial decision that establishes new precedent and settles the law of the question involved?
For now, the ball sits squarely on the center circle of the California Supreme Court. And in the next 90 days, Garcia will find out whether or not a landmark decision is made or whether, as he also contends, a denial means an appeal to the U.S. Supreme Court.
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Photo Credits:”California State Supreme Court,” by trophygeek at Flickr via Creative Commons-license requiring attribution; “Giant Gavel,” by Sam Howzit at Flickr via Creative Commons-license requiring attribution; “Tamales are finished,” by Aaron at Flickr via Creative Commons-license requiring attribution; “Spirit of Justice,” by DonkeyHotey at Flickr via Creative Commons-license requiring attribution.
