Out of Bounds

Lawyer without state bar card fights UPLC for right to practice before immigration courts

By John Council
Texas Lawyer
 

Houston solo Dakshini Senanayake Photo: Tom Callins

Sri Lanka native Dakshini Senanayake makes her living helping immigrants with foreign professional degrees like herself obtain work visas before the U.S. Immigration Court in Houston. After setting up a solo shop in a Houston office building last year, she began attracting clients by advertising in the Indian Herald and Voice of Asia, local newspapers targeting the Indian community.

Hers would have been the inspiring success story of a naturalized U.S. citizen helping others get established in the land of opportunity if it weren't for one significant twist -- the Texas Unauthorized Practice of Law Committee wants to shut down her practice.

Senanayake is a lawyer -- she graduated from Sri Lanka Law College in 1983 and she is licensed to practice law in New York and before the U.S. District Court for the Southern District of Texas. Senanayake, who moved to Houston in 1991 with her husband, concedes that she does not possess a Texas law license. And because she lacks a Texas bar card, the UPLC wants her to take down her shingle.

To force Senanayake to do just that, the committee filed a suit, UPLC v. Senanayake, on Jan. 24 in Houston state district court. The suit alleges that Senanayake is not a Texas lawyer and therefore is in violation of the Texas UPL statute, §81.101 of the Texas Government Code.

Senanayake responded on Aug. 12 with a countersuit -- Senanayake v. UPLC and the State Bar of Texas -- in which she alleges that the UPLC is violating her civil rights. She believes lawyers with foreign degrees and federal law licenses may practice before federal agencies under the supremacy clause of the U.S. Constitution.

"I'm not breaking any laws," says Senanayake, who on Aug. 19 will ask U.S. District Judge Sam Sparks of Austin to issue a temporary restraining order against the UPLC and the Bar to back off their attack of her practice.

Senanayake says she tried to explain to a Houston UPL subcommittee that what she does is perfectly legal because she limits her practice to the U.S. Immigration and Naturalization Service and U.S. Immigration Courts. She does not practice in state courts nor does she advise clients on state law, she says.

"I told them I'm only doing immigration, and I'm doing it under regulations," Senanayake says. But she says a member of the Houston UPL subcommittee told her that immigration law was "so commingled with state law" that maintaining an independent immigration practice was impossible.

That subcommittee member was Peter Williamson, a Houston immigration lawyer who sued Senanayake on behalf of the UPLC. He says he told Senanayake during the UPL subcommittee hearing that an immigration lawyer must know, for example, what effect Texas' family and criminal laws may have on their clients' immigration cases.

Williams concedes that the UPLC has heard no complaints from clients about Senanayake's work and that she is in good standing with the State Bar of New York and the Southern District of Texas.

Yet the litigation against Senanayake underscores what Williamson and other UPLC members believe is a potential problem with hundreds of other lawyers in the state who practice law before numerous federal agencies without Texas law degrees -- Texas clients have little recourse against unlicensed lawyers who may wrong them.

"It's a consumer protection issue," says Williamson of Houston's Williamson & Chaves. Yet he admits those hundreds of lawyers have so far escaped scrutiny. Senanayake, he says, is essentially a test case. Although the Houston UPL subcommittee is investigating several other lawyers who practice in front of federal agencies without Texas licenses, no action will be taken in the other cases until Senanayake's case is resolved.

"If a person has a problem with a lawyer they can go to the Bar [to complain]; with a person licensed elsewhere, there are no controls," Williamson says. "To the extent that she says she limits her practice to federal administrative law, there is no oversight to that either. And that is what the Unauthorized Practice of Law Committee is all about."

Senanayake contends that another lawyer who spotted her newspaper advertisement -- which states she is not licensed by the Supreme Court of Texas -- filed a complaint with the UPLC. She says she learned about the source of the complaint during her discussions with the Houston UPL subcommittee. She says the committee members would not reveal the name of the complainant and Williamson confirms this.

The Bar is often a defendant in actions against the UPLC because the Bar usually pays for the committee's legal expenses, says Shelby Rogers, general counsel for the State Bar of Texas. Senanayake says that's why the Bar is a defendant in her civil rights case.

Yet Williamson argues that Senanayake should just take the Texas bar examination and her problems would be solved. Senanayake says she intends to take the exam, but that Rule 13B of the Texas Supreme Court Rules Governing Admission to the State Bar of Texas won't permit her to take the test until she's practiced law for three years. She took and passed the New York bar, which does not have the same restrictions. She now has practiced in Texas one year, she says.

Peter Kennedy, a partner in Austin's George & Donaldson who represents Senanayake and is a veteran of many fights with the UPLC, alleges the Houston subcommittee is overstepping its bounds.

"She has a license from the Supreme Court of New York. What is his response to the fact that the INS rules say she can practice before the INS?" Kennedy asks. "She qualifies for them. His argument is with the federal rules. His argument is squarely against federal law."

Crack Down

Lawyers who sit on the UPLC say cracking down on questionable immigration law practices is not new. In the late 1980s when illegal immigrants were allowed to take advantage of a short-lived U.S. amnesty program that granted residency status to certain immigrants, unlicensed fly-by-night immigration businesses popped up all over Texas, UPLC lawyers say.

"We prosecuted lots and lots of people for practicing immigration. The reason we get so excited is if they screw up, their client is gone. They get deported," says Jim Blume of Dallas' Blume & Stoddard who represents the UPLC. "And they [the clients] don't have any recourse."

While the UPLC has eliminated many of those illegal law practices, it now is looking at lawyers who do not have Texas licenses yet practice before the INS.

"A person who has a license to practice law before an administrative federal agency can do so," concedes Leland de la Garza, chairman of the Dallas UPL subcommittee and a partner in de la Garza & Wallace.

But the UPLC gets interested when those not licensed in Texas set up an office and start giving advice, says de la Garza. He says his committee is investigating a similar case against a lawyer in Dallas who allegedly is practicing immigration law without a Texas bar card. He declines to name the lawyer.

"A person may be free to go the courthouse and represent people," he says. "But when they have an office where they give advice, they don't have that shelter."

George Kazen, chief U.S. district judge for the Southern District of Texas, says it's common for out-of-state lawyers who practice in Texas often to get licensed in Texas federal courts without getting a Texas bar card. Yet it is unusual for a lawyer with an out-of-state license who resides in Texas to practice in federal court without a Texas bar card, Kazen says.

In her federal petition, Senanayake alleges that the motivation for the UPLC's suit against her is protecting the business of Texas lawyers from outside competition.

"The action is being prosecuted by an immigration lawyer in private practice in Houston, raising the specter of anti-competitive motives," Senanayake alleges in her federal petition.

Williamson has heard the protectionist claims before and says they are untrue. A former president of the American Immigration Lawyers Association from 1994 to 1995, Williams says he was in the minority when he supported a proposal that all immigration lawyers must be licensed in every state in which they have their primary offices.

"They generally don't like this," he says of his support for stricter licensing requirements. "They like to move from state to state."

Airing the Issue

Blume, who is defending the UPLC in Senanayake's federal suit, believes the action may be a tactic by Senanayake's attorney to put off a Sept. 9 trial date in the UPLC's state court case.

Blume says Senanayake is not under any type of restraining order in the case against her in state court and is still allowed to practice.

"Maybe what they're trying to do is delay the [state] trial," Blume alleges. "I don't quite know where he's [Senanayake's attorney] going with a [federal] TRO hearing when we don't have her under an injunction."

Kennedy declines to discuss the matter before he argues his position before Sparks. Senanayake says she believes this is a federal rather than a state matter.

Williamson says he has no quarrel with Senanayake's federal case. He concedes the issue is controversial and needs to be resolved.

"I've been taking angry calls from lawyers because of this," Williamson says of the UPLC's state court suit against Senanayake. Some that have complained have since obtained Texas bar cards, he says.

And litigating in federal court may be the best way to put the issue to rest, Williamson says.

"I think it's an issue that needs to be aired and litigated and discussed. And if they want to take it into federal court and air it out, that's fine," Williamson says. "The more discussion there is about what goes on I think the better off we all are."

If the UPLC loses, so be it, Williamson says.

"Even if we were to lose, I think we've already played a useful role," Williamson says. "But I don't think we would lose."